Law and Morality Flashcards
How did Sir John Salmond describe law ?
A body of principles recognised and applied by the state in the administration of justice
What are legal rules ?
stat. or common law rules used to enforce basic rights and regulate society
What stops us from breaking these legal rules
Sanctions administered by the state (jail, community service etc.)
How did Phillip Harris define morals ?
set of principles affecting standards of behaviour that change over time and aren’t shared by all members of society
What examples are given to prove that morals are often developed by religious beliefs
Christians - 10 commandments and bible
What do morals rely on ? and 1 example
someone’s sense of shame and condemnation stopping them from going against their morals
Adultery
What does the Marriage Act 1949 show and what did it develop ?
that morals are fluid and it introduced the Equal Marriage under Marriage (Same Sex Couples) Act 2013
What do Legal Positivist believe ?
law and morals are distinct seperate issues and that legal rules are valid if created properly through legislation
What did positivity Austin say
‘A law which exists is a law, though we happen to dislike it’
What is the command theory by Austin ?
the law is a comman we must obey regardless of the fact we think it is immoral e.g Nazi Germany Laws
What is a Natural Law theorist ?
Law and morals should have a link and law should enforce morality
What does St Thomas Aquinas say?
laws come from god and when fail to conform to morality they are invalid
Why would Aquinas disagree with Austin
would agree that informants should be punished after the war even thought during Nazi Germany they were following the law
What did Lon Fuller add to natural law after the decline in religion?
valid legal system has 8 legal & moral requirements incl. that it is in existence, published, understandable and consistent
Why did Bentham criticise natural law
confusing legal and moral issues
What did the Wolfenden Report lead to and how does it relate to the Hart- Devlin debate?
de criminalisation of homosexuality under Sexual Offences Act 1967 highlighted disagreement between positivism and naturalism (Hart- Devlin dante)
What did the WR say ?
law shouldn’t ’intervene in the private life of citizens’ & “must remain a realm of private morality and immorality which is not the laws business”
Why was Lord Devlin critical of the WR?
law should set basic standard of morality and if private immoral conduct was allowed then society may disintegrate
What was said by Lord Templeman about R V Brown
moral duty to protect society against moral behaviour however the 5 men engaging in consensual acts still resulted in a guilty verdict = law enforced morals
What is the utilitarian approach oh John Stuart Mill ?
the minority in society shouldn’t be made to conform to the majority
Why did Hart disagree with the decision in R V Brown
law shouldn’t enforce as unnecessary undesirable and unacceptable law should be limited in protecting and enforcing morals
When should the law enforce morals
when a ‘Genuine threat to social order from the immoral conduct’
What did Russel LJ Drew sayin in the case of R V Wilson compared to R V Brown
“Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, a proper matter for criminal investigation let alone prosecution”
Why did Hart and Mill disagree with the ruling in Brown ?
wasn’t threatening society only themselves , private immorality is private and not for state interference
Why is it difficult for Parliament to pass laws to reflect morals
because what some people consider immoral others do not
What does Durkheim say and how does it contradict ?
in small societies possible for a common morality and common laws however we line in pluralist society with different beliefs co existing
Why may Parl. use Private Members Bills
to pass controversial laws without opposing the public and ultimately staying in power
What is an example of Parl. passing controversial acts under Private Members Bills
the Abortion Act reflecting a women’s right to choose but opposed by the church and therefore is based on morals
What law is seen to not enforce morality ?
Euthanasia as many believe it’s morally right however the Assisted Dying Bill was defeated in parliament
Why did the case of Pretty V DPP cause such controversy ?
refused a terminally ill women the right to die which was supported by Religious Orgs. but Social Groups disagreed
What was it that Social Groups and Movements argued about Pretty V DPP
immoral to refuse Pretty the right to die and allow a human being to suffer and lose their dignity
Why do strict liability offences not call for the law to enforce morality
as helps protect public and ensure high standards regarding health and safety
Why was Callow V Willstone criticised
butcher who was found guilty of selling meat unfit for consumption even after checking with a vet - unfair to be found guilty of something u didn’t know u were committing if try to prevent
What did the case of Re A. the conjoined twins show about morality when the court authorised their separation ?
made on a moral ground as the parents didn’t want as a religious choice so judges called old and out of touch
morals and laws and intertwined give an example
‘Thou shalt not kill’ 10 commandments
Common Law Murder - LJ Coke
