Law and Morality Flashcards
What are rules?
‘A general norm mandating or guiding conduct’. It determines the way we behave, either voluntarilt of by enforcable conduct (sanctions).
Sanctions
Sanctions are put in place if laws are broken.
What are morals?
The conscience of knowing whats right and wrong. These are personal and taught or influenced by family, teachers, friends. Perhaps there is guilt or social judgement if morals are broken, but no real sanctions or punishments occur.
The 2 main theories of the nature of law
- Legal positivism
- Natural law
Legal positivism
A theory of law that is based on the idea that laws are valid where they are made by the state (recognised legislative power) and do not have to satisfy a higher authority. Law is autonomous - we can identify its content without resources to morality.
The classical legal posivitists
19th Centurary Philosophers:
- Jeremy Bentham
- John Austin
- Professor H.L.A Hart
- John Stuart Mill
Modern legal positivists
- Kensel
- Raz
The classical legal posivitists - Bentham
Opinion on law does not affect its validity.
The classical legal posivitists - Austin
Created the Command Theory of law:
- commands are issued by the uncommanded (soveriegn)
- commands are enforced by sanctions.
The classical legal posivitists - Hart
Criticised Austin for the simplistity of the theory, instead developed 2 categories for rules:
- Primary Legal Rules: impose legal obligations
- Secondary Legal Rules: enforce primary legal rules via:
a) recogniton
b) change
c) adjudication
Modern legal positivists - Raz
Believed morality has no part in law. Law is tested by 3 elements:
- efficacy
- institutional character
- sources
Legal Positivism - cases
‘Not a court of morals but a court of law’.
Re A (children)(conjoined twins: surgical seperation)
Gillick v West Norfolk and Wisbeck Health Authority
Wilson
Evans v UK
Natural law theory
Law should reflect morality. There is a higher law which we can turn for our moral code.
Natural Law theory philosophers
- Thomas Aquinas
- Lord Patrick Devlin
- Professor Lon Fuller
Natural Law theory philosophers - Aquinas
Natural law is the moral code humans most align themselves with, man made laws are simply made around them.
Summa Theologica: believed there were 4 types of laws:
1) eternal law - natural tendency to pursue god given laws
2) natural law
3) positive divine law - commands of god, 10 commandments
4) positive human law - in accordance with natural law.
Natural Law theory philosophers - Devlin
The Enforcement of Morals 1959: argued that the state has the right to enforce societal morality through criminal law. He devised 4 key principles for Parliament to bear in mind when deciding which moral offences ought to be prohibited by law or not:
1) Individual freedom to be allowed must be consistent with the integrity of society
2) Limits of such tolerence are not static, but laws should change slowly to protect morality
3
Natural Law theory philosophers - Fuller
The Morality of Law 1969: law serves purpose by achieveing societal order via shared morality. He came up with 8 principles on the inner morality of law:
1) Generality:
Laws should apply generally to all members of a particular class of individuals, not just specific individuals.
2) Publicity:
Laws should be made public and accessible to those who are bound by them.
3) Non-retroactivity:
Laws should not be applied retroactively to punish conduct that was legal when it was performed.
4) Clarity:
Laws should be written in a clear and understandable way, so that individuals can know what conduct is prohibited.
5) Non-contradiction:
Laws should not contain internal contradictions or conflicts that make them impossible to follow.
6) Practicability:
Laws should be capable of being followed by the individuals to whom they are directed.
7) Constancy:
Laws should be stable and consistent over time, allowing individuals to rely on them and plan their affairs accordingly.
8) Congruence:
There should be agreement between the declared rules of law and the official actions of the government.
Natural Law theory philosophers - The Wolenden Report
The Wolenden Report 1957 suggested legalising prostitution and homosexuality. This sparked the Hart-Devlin debate.
Natural Law theory - cases
- Brown
- Shaw v DPP
- Knuller v DPP
- Gibson and Sylveire
- Pretty v DPP
- Cox
- Dudley and Stephens
The Hart - Devlin Debate
Started due to the Wolenden Report 1957.
D: common morality is necessary to keep society together, law has a duty to uphold common morality and immorality is judged by a standard of right minded people.
H: the use of law to enforce morals is unnecessary. Free choice should be respected, standards of immorality is tenuous.
Actual debate:
1) D: laws should be based on society’s morals.
2) H: society should not interfere with private conduct. It should only interfere if it creates public nuisance.
The Hart - Fuller Debate
1) H: criticised F for calling his principles natural morality.
2) F: criticised H for failing to acknowledge morality involved in the creation of law.
The Utilitarian Theory - John Stuart Mill
Individuals should be free to choose their own conduct as long as no harm is caused to another. Morality should not be forced upon by society.
The Utilitarian Theory - Law, Liberty and Morality (1962)
If actions don’t cause direct harm, it does not mean no harm was caused at all.
Civil Disobedience
The refusal to comply with certain laws considered unjust as a peaceful form of political protest.
