Law and Morality Flashcards
Law and Morality refers to the interaction between the defined, rigid laws and the abstract and oftentimes fluid concepts of morality
Legal rules are often enforced formally such as through the government, police and the court system, whereas moral rules are generally enforced informally, such as through social exclusion or condemnation
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
One example of this is in the law of economic duress, where it would likely be deemed immoral to force someone to carry out a contract where they have been induced into the contract by duress, therefore allowing rescission reflects moral rules.
One issue in this area is that morality is an inherently subjective concept, as different cultures, backgrounds and upbringings can result in a different belief of morality
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 is the theory that law should be kept entirely free from morality, described by Aristotle as “reason free from passion”.
Natural Law Theory contrasts this to argue that morality should be able to influence law, a view supported by theorists such as Lord Devlin.
Overall, the interconnection of law and morality is positive as it allows the law to keep up with what most people view as ‘morally right’.
However, due to the ever-changing and subjective nature of morality this may be hard to discern and could leave the law to be seen as immoral due to it being outdated or decided by law makers with their own view on morality.
