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A-level Law 👩🏿‍⚖️ > Law And Morality ✝️ > Flashcards

Law And Morality ✝️ Flashcards

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1
Q

What do legal positivist Believe ?

A

Law which is made in the correct way is valid

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2
Q

What do natural law theorist believe?

A

Law must be at a higher compatibility with higher authority - GOD

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3
Q

What are morals ?

A

Beliefs and values shared by society

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4
Q

What is law?

A

The bodies of principles recognised and applied by the state in the admission of justice - Sir John Salmond

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5
Q

What are the several meanings of law ?

A

All

laws that govern our lives

And specific such as criminal law

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6
Q

What did John Austin say about legal positivism?

A

Law which exists as law though we happen to dislike it

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7
Q

What did Austin say about legal positivism within the command theory ?

A

Law is a command by the sovereign re- enforced by sanctions

Sovereign is the state

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8
Q

What did Professor Hart criticise about Austin’s command theory?

A

Too simplistic it’s difficult to identify the sovereign -Not all law those fit in the theory contract law 

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9
Q

What did Professor heart state that the legal system has?

A

Two different rules

Primary rules - impose legal obligations or grant power eg acts like the theft act 1968

Secondary rules - concerned with the operations of the primary rules

Eg. delegated legislation and processes

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10
Q

What’s natural law theorists believed the validity of man-made law depends on?

A

Compatibility with higher authority

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11
Q

What does Thomas Aquinas believed? 

A

As a natural law theorist- must follow divine law - standards that we must foollow in to attain salvation

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12
Q

What does FULLER say in his book of morality of law as a natural law theorist ? 

7 things !

A

To be trurly legal the legal system must fit in the requirements

generality-There should be rules and not ad hoc judgement - rules set in Advance and people are treated the same with same case

Promulgation- rules Made known to all of those affected by them

Nonretroactivity - also not have a retrospective effect (cannot change multiple times )

Clarity- rules should be understandable

Consistency - rules should not conflict

Realism - people should not be required to do the impossible

Constancy- rules should not be changed so frequently

Congruence - the administration of rules should concise with the information available to the public

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13
Q

What are UK morals are being dictated by ?

A

by dominant religion Christianity

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14
Q

What do debated on morals tend to centre on ? 

A

Sexual issues
life-and-death
medical issues

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15
Q

What did DURKHEIM argue That it’s difficult to?

A

Difficult to pinpoint a set of moral values shared by all

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16
Q

What is it easier for less developed societies to agree on?

A

A moral code

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17
Q

What did the DURKHEIM say that societies which are more traditional tend to have?

A

Collective consciousness

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18
Q

What does a society being incredibly diverse make it less easy to do? 

What kind of consciousness did DURKHEIM say this is ?

A

To Agree to people having
different jobs
religious perspectives
social status

A more individual consciousness

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19
Q

What does the DURKHEIM argue that collective consciousness is essential to? 

A

Strengthen morality 

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20
Q

What changes over time ?

A

Moral and legal rules

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21
Q

What change comes first ?

A

Legal changes come after moral ones

What society agrees something is immortal may become legal

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22
Q

What are some examples of moral changes that lead to legal changes?

A

R v R

The abortion act 1967

Slavery abolishment

Divorce bill 2008

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23
Q

What are some legal changes that may lead to social morality ?

A

Duster - legalisation of morality - history of drug control in America

Was legal in 19th century - restricted for upper class
- morphine ❌ social stigma

The Harrison act 1914 - made it illegal - had to go to the criminal underworld to get them - LC - more contact

Social stigma - born out of legalisation -making drugs illegal lead to cries for greater control over Thoes taken them

Race relations act 1965 opposed by parliment but paved the way for equality legislation

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24
Q

What are the similarities between laws and morals ? (4)

A
  1. They are both normative-Into draw the line between what is acceptable and not acceptable behaviour - DL Precedent theft act
  2. Legal rules - Backed up by sanctions fines compensation community services

Disapproval for friends and family - being shunned by society

  1. Laws can can vary from society to
    Society - soft drugs euthanasia
  2. Areas of law - present modern day issues - MPs allows to vote using own moral code - not a party line - “vote of conscience” - used for capital punishment
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25
Q

What are the 8 examples of the similarities between laws and morals

A

In some areas of law such as criminal law The is an obvious moral implication - harming or stealing from others

Vastly opposing views on whether abortion is taking human life or Woman exercising control on her body
abortion act 1967

R V R - Societies changing attitudes towards marital relationships - rape is possible

Changing in police attitudes towards domestic violence - duty to protect goes over right to privacy
Eg - cohesive control

Reasonable man test and criminal acts- to measure against the moral standards of society - Barton V Booth in theft - Blyth V Bath waterworks

Whether the Law uses words like maliciously
dishonesty theft act 1968

there is a moral tone indicating that Person has acted below the standard expected for society

tort nuisance GBH murder definition

Criminal omission deal with moral obligations- responsibility for another Stones V Dobinson

Civil law - moral issues

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26
Q

What is the difference between law and morality?

A

Morality develops over a long period of time but is it possible for law to be introduced instantly

Morality cannot be deliberately changed - long time for society to accept changes in behaviour like homosexuality

law can change quickly is can be decriminalised overnight

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27
Q

What does morality depend on?

A

Voluntary code

Law - enforceable

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28
Q

What does law have?

A

More precise content AR and MR of theft

Morals are less precise

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29
Q

What do you laws apply to? 

A

Everyone whereas morals do not apply to everyone

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30
Q

What are morals not usually subject to?

A

Formal adjustication

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31
Q

What are some examples of the differences between law and morality?

A

Gillick V West Norfolk - X immoral to give contraception to go with him or more to offer her protection because someone wanted pregnancy

Strict liability offences - no MR needed so there’s no need for questioning on defendants motive

Telling lies - Immoral but not illegal 

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32
Q

What do you legal positivists believe law should reflect morality ? 

A

Law valid - made by a recognised Legislative state - gov and judiciary

Do you not believe that Law reflect any higher authority- so would reject ideas That law Should follow religious values

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33
Q

What did Bentham and Hart Believe as legal positivists ?

A

Bentham -
Should only be concerned with what laws are and not where they come from

Professor Hart - believes that law should remain separate from morality

To function it should be both primary and secondary laws x stem from morality

Kelsen agrees - Aylesbury mushroom 🍄 case - Procedural UV -

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34
Q

What did natural law theorists believe about those reflecting morality ?

A

Believes law should reflect a higher authority - would encompass religion if not - not valid

Aquinas-Followed Aristotle and believe that we should follow the Christian ideology of the 10 commandments

Lon Fuller - Law should have the purpose of achieving social order by subjected population to rules that regulate behaviour

Eight principles which make up in a morality of Lore roads must be sufficiently general

publicly promulgated

Prospective

clear and intelligible

Free of contradictions

Constant- don’t change from day today

Possible to obey

Administered in a way that does not diverged from obvious meaning 

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35
Q

What is morality from a pluralistic society?

Cases? What do we need to keep out?

A

Pluralism- is the idea that society is made up from different cultures and traditions that
Work together to benefit society

The way we live and shape Our lives may be constrained by the state - conscientious objector may refuse to fight- punished - R v Lyons

Argue that we need to keep religion and morality out of law get rid or radicalism

Abortion - Dublin well women V Ireland

Evans V UK 🇬🇧

Same-sex couples act 2013

black and Morgan - X allowed B and B

Goodwin V UK - gender recognition act 2004

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36
Q

What is the relationship between law and morality?

Examples and what has this led to a change to?

A

Set standards of behaviours which are essential for the governance of society

Needs to be justified society - if unfair Strict liability offfences - mens rea 

  • R v Williams - adultery - Maybe seen as
    immoral but not illegal

LGBTQ - R v R

Pressure groups - Nicklinson V UK

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37
Q

How do you do legal changes do a lot to change the position of Mortality ? 

A

Dusters study of the legalisation of drug use in America was seen as immoral when it was made illegal and associated with the criminal world

recently Race relations act - anti-discrimination legislation equality act 2010

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38
Q

How does utilitarianism instil Enforcement of moral values in law ?

Mill?

A

Mill - Explored the nature and limits of power that the state has over an individual

Develop the harm principle- law should only be enforce against the individual if their actions Where to harm another person

Believe people are free to live lives if no harm

Supports R v Brown -

Defence of duress and LOC - diff levels of intent 

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39
Q

What did sir Stephan Criticise about Mills Harm principle?

A

It’s not as simple to separate - actions - that the state should be there to ensure that wickedness an immorality is not allowed

Mill - could lead to secondary crime - substance abuse

Private choices ?

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40
Q

What is the Hart - Devlin debate?

Difference between?

A

Steemed over the Wolferdeem report - Legalisation of prostitution and homosexuality

Law - has the right to preserving public order but not the function to intervene with private life of citizens or particular patterns of behaviour

Difference between private morality and immoralities

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41
Q

What does Devlin argue about the law reflecting morality?

standards of immorality is based on

A

society is dependent upon the common morality -
Loosened by private immorality -
integrity of society lost - disintegration

Wickedness - should be punished society- harmful

Reasonable man- Blyth V Bathwater works 

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42
Q

What did heart argue about law reflecting morality?

A

Should not interfere with more private moral conduct

Shaw V DPP-Create a new defence conspiracy to corrupt to public decency- advertising prostitution

  • Presented greater evil
    LOC duress self defence

R v G

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43
Q

What is formal / Procedural justice?

A

Everybody has a fair chance with the system the system is deemed formally just

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44
Q

What is concrete or substansive justice ?

A

You’re more concerned with the end result -Such as actual distribution of wealth

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45
Q

Who is Aristotle and what did he say?

A

Law is one that allows individuals to fulfil them selves within society

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46
Q

What were the two justices Aristotle found?

A

Distributive justice - allocation of assets - wealth

believe individuals receive benefit proportionate to the claims

The worthiest rather than the neediest being being rewarded

Corrective justice when a situation that has been distributed by A wrongdoing

47
Q

What are some examples of other stuff to me distributive and corrective justice

A

Income tax
compensation

48
Q

What did Thomas aquinus discuss?

A

Due proportion- People receiving what they are due to their merit , rank and need

Communicative Justice - Governed by equality- get a fair deal

Legal aid - income tax

49
Q

What did Utilitarianism believe?

A

Society should what was the greater good and great Number - Even if individuals lose out
Bentham - theory - felicific calculus

MILL - justice includes respect for others and their rights which brings out the greater good

Punishing wrong dooers - evil but justified

50
Q

What did Rawls Believe ?

A

Equal distribution of rights power and freedom

Members of society set principles to make society just

51
Q

What kind of position did Rawls believe in ? 

A

Original position

of the discussion without being aware of what their position in society would be

This means that no one would put an idea that will disadvantage them

52
Q

How could the original position be criticised ? 

A

Individuals may accept certain principles but then not if Position improved in the expense of others

53
Q

What did Karl Marx Believe about law and morality?

A

From each according to his ability to each according to his need

impossible for a capitalistic society to be just - organised to uphold the interest of the ruling class

rather than justice for all

54
Q

What did Perelman believe justice was achieved by?

A

justice is achieved through personal contribution - Eg - Large scale output in a factory

55
Q

What were the six distributions of benefits Perelman found in justice?

A

Each according to his

works-Contribution getting paid more as a doctor

needs- Single parents supporting several children in need social benefits

merits - Individual gets what they deserve doesn’t get to go to prison

rank - Deserve more due to authority - Teachers have additional rooms

legal entitlement - Inheritance

equally - tax everyone has ability to pay

56
Q

What does Plato see justice as?

A

Harmony

57
Q

What were the three elements of justice that Plato found ?

A

ruling class- reason
warrior class - spirit
farmers - Appetite and desire

Justice was achieved when there is harmony warring elements

58
Q

What did natural theorists believe about justice?

A

Higher order of law that need to be followed for it to be just

Gods will - Aristotle agreed

59
Q

Examples of natural law ?

A

Thou shall not kill -murder

60
Q

What did Nozick believe justice should be?

Eg

A

Believe that the state to make the law as minimal as possible - exist to protect people from crime

and 🚫not interfere with individual freedom

not riding a bike 🚴 with a helmet

61
Q

What Nozick emphasise importance of? 

A

rights to property

62
Q

What are the 3 ways Nozick said property can be obtained?

A

Acquisition - Inheritance
transfer - Buying from another
rectification of unjust transfer - returning back property from unjust transfer

63
Q

What is formal/procedural justice? 

Does it achieve justice or does it not achieve justice

Under Justice in practice ?

A

Everyone has access to the law And everyone is subject to the law

AG

64
Q

What are some examples of everyone being entitled to put their case in court does it achieve justice or not?

What are modest incomes not ?

Quote from Darling ? 

A

Everyone is entitled to put their case in court - legal representative - AJ

Help schemes - AJ

however legal aid does not cover all cases - DAJ

modest income is not legible -DAJ

conditional fee agreements available to those with good case - AJ

if not no - DAJ

“Law like the doors of the ritz hotel is open to all ”

65
Q

How does J darling present Procedural justice not achieving justice? Under the ?

What are the stricter rules under ?

A

Through “the law like the doors of the Ritz Hotel is open to all”

Under legal aid sentencing punishment of offenders act 2012 - Government cut back on key areas of law

Stricter rules for those looking for asylum or Domestic violence victims

66
Q

What has happened to the rules and justice in practice?

A

They’ve been challenged showing that courts are trying to make sure that procedural justice can be achieved

(R v Secretary of State justice )

67
Q

What are the rules of justice designed to ensure?

A

That trails and hearings are fair  - AJ

68
Q

What is the role of natural justice and justice in practice?

AJ and DAJ ?
Case?

A

Trials and another hearings are fair -Both sides should have a reasonable chance of putting cases forward in - AJ

Measures introduced to protect them witnesses may deny a defendant in some cases to test evidence - DAJ

(R v Thames Mag court ex parte )



69
Q

What does natural justice require Judges not to be? 
Case

A

Bias
(Re Pinochet)

70
Q

What does the appeal system allow formal justice for ?
what case under justice in practice? 

A

R v Thornton 

71
Q

What does natural justice ensure about the rules of evidence ? Case?

A

Only relevant and fairly obtained evidence is given into court- Attained by oppression ? it makes it unreliable

R v Miller


72
Q

What can the rule of evidence of the natural justice do?

A

can operate against the interests of justice -
when excluded Evidence that may lead to the right decision

(R v Mason)

73
Q

What is trial by jury in criminal cases? Case ? Natural justice under justice in action

A

Allows jury to do justice as it sees it -No need to explain decision

R V ponting

74
Q

What made mandatory sentences lead to under natural justice?

What does Aquinas and mill argue ?

Case?

A

Formal and corrective justice (Aristotle)

Aquinius - under due proportionality

Mill - Punishment is evil

(R v Inglis)

75
Q

Why was equity developed under concrete justice? Case ?

A

To enable courts do justice where the common-law prevented it-For example new remedies

( Beswick V Beswick )

76
Q

How is concrete justice achieved in criminal law ?

How not ?

A

Partial defences such as diminished responsibility go to kill not fully responsible for actions - not convicted

however mandatory life sentence - home sec - relates prisoners - justice ?

77
Q

What does the rule of negligence to create under concrete justice ?

A

A fair result - Robinson V CC of West Yorkshire

Unfair - Bolton V stone

78
Q

How May the rules of a learner driver be unfair under concrete justice compared to a surgeon 👩‍⚕️?

A
  • surgeon not liable for medical incident - unless of fell significantly below RP

whereas in Nettleship V Weston - was for driving

79
Q

Defences unfair under concrete justice ?

A

Defence of duress not available for murder - R v Howe

80
Q

What will there always be under substasive justice ?

A

Miscarriage of justice -inno people convicted - appeal courts may try and put right - EG . Timothy Smith hanged

81
Q

What would mandatory sentences be ? CJ - case

A

Unjust - R v Tuner

82
Q

How does contract law protect others? Under CJ ?

If not? Case?

A

Protects consumers with weaker bargaining position - under the consumer protections act 2015 - exclusion clauses are invalid - operate on general rule caveat emptor

Olly V Marlborough court

83
Q

What may strict liability appear as ? Case?

A

Unfair but achieve a fair end result - (Abouzaid V Mothercare )

84
Q

How do we introduce a law and justice essay? What is law and justice? What did Sir John and Ross state ?

A

Law - the body and principles recognised applied by the state in the Administration of justice - Sir John Salmond

Justice - conduct and fairness 

Ross - justice is the correct application of law in oppose to arbitrariness Application in this

85
Q

What is just as difficult to do

A

Difficult to define- What might be seen as justice may not be seen as to another person

We have many theorists 

86
Q

What are the theories of justice where law does not achieve justice?

A

Formal justice procedure - first system legal institutions such as police courts
judiciary
Appeals 

87
Q

How was justice achieved under procedural justice? - law and justice essay plan

4

A

There must be a fair hearing natural justice - R v Thames mag court 

No bias - (Re Pinochet)

Evidence must be fairly obtained (R v Miller)

Trial by jury - mechanism allows fairness
 (R v Ponting)

88
Q

How can procedural justice law to be unfair?

A

It can work and get the Inertest of Justice
- (R v Mason)

89
Q

What is the second justice we talk about in the law and justice essay plan after procedural?

Eg?

A

Concrete or substantive justice- Fair end result - criminal defence fault in tort, rights human rights

90
Q

What are the 3 ways concrete justice is a achieved under the law and justice essay plan ?

A

Equitable remedies - (Beswick V Beswick)

Defences to murder can help distinguish different types of offenders - Does self defence help achieve justice

The appeal system - miscarriages can be put right S.2(1) - The criminal appeals act - role of criminal case review commission 

91
Q

What are the 5 ways Justice may not be achieved under concrete justice in the law and justice essay plan ?

A

There is still a miscarriage of justice - Timothy Evans Birmingham six

Mandatory Minimum sentences - life sentence - R v Turner

Nettleship V Western

Access to justice- there is still a barrier - due to financial constraints

Victims of justice- MacPherson report Stephen Lawrence

92
Q

What are the 10 types of theorists we need to talk about in the law and justice essay plan?

A

Natural law

Aristotle

utilitarianism

Nozick and minimal state

kelsen

Marx

Hart

Perelman and varieties of justice

Plato

Rawls

Thomas Aquinas

93
Q

What is natural law in the law and justice essay plan? What did Aquinas say?

Examples ?

A

The Lord that goes against what is derived by God 

Aquinas - validity depends on the compatibility with higher authority

Homosexuality - black and Morgan 🚫

Abortion - 🚫

murder - thou shall not kill supported

R V taylor

94
Q

What did Aristotle believe in law and Justice essay plan?

A

Two kinds of justices -

distribution - The allocation of resources eg . Wealth and power eg . minimum wage redistribution of wealth through taxation

Correctiveness sentencing- in criminal law eg . retribution , remedies in tort

95
Q

How can judges promote corrective justice under the law and justice essay plan ?

A

Award damages

There are high offending rates

inequality of bargaining powers in civil cases

96
Q

How does Aristotle say that we struggle to Create justice May lead to ?In the law and justice essay plan?  examples

A

This may need to inequality - antidiscrimination laws
workers
Racism in the police force Stephen Lawrence

this is not achieve the people wrongfully convicted or harshly sentenced

97
Q

What is utilitarianism. Under the law and justice essay planWhy is it promoted by criminal law 

A

For the greater good to the great Number harm principle -

Criminal Laws promote utilitarianism- To prevent behaviour that is not good for society
Murder and theft

98
Q

What is the right one person undermined by under Utilitarianism?

What would legalising euthanasia not be?

A

By society not leading to justice
For the individual - floodgates argument black and Morgan

Will not be utilitarianism

99
Q

what did Nozick stake Under the law and justice Essay plan?

What law is not just? 

A

State interference should be minimal

Welfare state law not just ?

100
Q

What did Kelsen believe under the law and justice believe under The law and justice essay plan 

A

No relationship between law and justice - justice too difficult to define

101
Q

What does Marx believe the capital society will never be?

A

Just

102
Q

What did Hart believe under the law and justice essay plan ?
What is the supported by?

A

Cases should be treated alike

Supported by the system of precedent 

103
Q

What goes against Harts theory?

What may change due to the way we treat cases

A

Mandatory sentences -The way we treat cases may change due to society over ruling Past decisions - R v R 

104
Q

What will Perelman And Variates of justice of justice say about the law and justice in the essay plan? quote ? 

What is crime graduated according to

A

Crime is graduated according to seriousness - “To each according to his merits”

105
Q

What is the negatives of Perelman and the varieties of justice

Criminal sentences ?

A

Criminals do not always get the same sentences - to each equally? 

106
Q

What did Plato say about justice ? Achieved by

A

Justice is achieving this harmony between the warring elements

107
Q

What did Rawls say about the theory of justice?

A

Original position - reflected today in human rights legislation freedom of individual

108
Q

What did Thomas Aquinas say about law and justice or did both parties get ? examples? 

What is it governed by? 

A

Due proportion communicative Justice

Governed by equality

where both parties get a free trial

Contract law

109
Q

What is the introduction the law and morals essay plan?
3 cases and Durkheim ?

A

Law - is the body of principles recognised and applied by the state in the administration of justice

Morals - the defined beliefs and values shared by society

R v Lyons - Contentious objector-Not allowed to use freedom of though to not be deployed to Afghanistan

Pluralism in Europe and ECHR- Try to keep politics out
Evans V UK 🇬🇧 2007 - Refused to destroy embryos as its relationship with article 8

Durkheim discussed difficulties with achieving more consensus especially on consensus issues - abortion euthanasia homosexuality prostitution

110
Q

What are the two changes in law and morality- essay?

A

Legal changes follow moral ones - divorce homosexuality and abortion -
R v R - R v Penguin 🐧 books 📕

Legal changes rarely come first - Tony
duster - legislation of morality

Race relations act

111
Q

What are the six differences between law and morality?

A

Nature of sanctions are different

Morality changes slowly over time
Law can be criminalised overnight R V R

Morality cannot be deliberately changed where is law can 

Law is compulsory unlike morals

Strict liability offences and minor criminal offences - no real moral obligation

Origin is different religious verses vs cases convention

112
Q

What are the similarities between law and morality 

A

Both are normative

And carry sanctions

Vary form society to society

Criminal law and moral implications

Language and moral obligation

Civil law - moral implication - negligence- contract

113
Q

 Theories surrounding this area should liberality be separated?

A

Natural law - Morality with Lord fuller - Compatibility with higher authority
V Positivism - Kelsen - A law exist is with law

Morality in a pluralistic society

utilitarianism - Individual independence John Stuart mill - harm principal - Drugtaking Abortion Homosexuality

Relationships between law and morality

Hart - Devlin debate Devlin - Law should follow morality and should only reflect the minimum level

Hart - law not to interfere in private moral or immoral conduct only in rare situations 

The role of judges - Shaw V DPP
Kullur V DPP
R v Wilson

R v Gibson
Gillick V West Northfolk

Modern examples abortion act euthanasia Nicklinson gay marriage



A-level Law 👩🏿‍⚖️ (15 decks)

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