Law and Morality Flashcards
What is law and morality
Law and morality refers to the interaction between defined rigid laws and fluid abstract concept of morality, where morals are subjective personal codes, laws are objective and enforced.
Enforcing of laws and morals
Laws can be enforced formally through punishment and remedies such as specific performance of damages, whereas morals are enforced informally, such as social condemnation and isolation for acts viewed to be immoral.
Shaping of the law
Its common for moral rules and legal rules to reflect each other as the law is shaped and changed by the morality of the people making the law
Contract example
One example of this is in the law of economic duress, where it would be deemed immoral for a party to be forced to complete a contract in which they had been coerced by illegitimate pressure, therefore allowing rescission reflecting legal rules.
Issue of subjectivity
However an issue of morality within out society is it is highly subjective, as different religions, cultures and ringing can result in different belief of morality where some religious grouping may view subjects such as divorce and abortion as immoral, some may argue it would be immoral for them to be illegal.
Criminal case example
This is clear in the case of R v R (1991), where marital rape was criminalized, showing that the law was slow to change as many in society would have believed it to be immoral prior to the law making it illegal.
Positivism
Two approaches to morality; Positivism, where Aristotle stated reason should be free from passion and the law shouldn’t enforce moral values,
Natural law theory
Natural law theory, supported by Lord Devlin, who argued law should enforce moral values even if it doesn’t directly cause harm (Harm principle).
UK siding with one approach
UK seemed to coincide with natural law theory due to decline in religious institutes results in acts such as abortion act 1967.
Overall
Overall, law and morality allows law to be kept up to date with social and moral changes however due to rigidity, law can be slow to change, leading to outdated laws.
