Law and morality Flashcards
What did Sir John Salmond say about the law?
The body of principles recognised and applied by the state in the administration of justice.
What did John Austin say about the law?
A command issued from a sovereign power to an inferior and enforced by coercion.
Law principles
Compulsory
Made and take effect at the time
Laid down as acts of parliament
Made by constitutionally recognised bodies.
Compulsory example
Education Act 1996
Made and take effect at precise time example
1st July 2007 smoking banned in public
Laid down as act of parliament example
Abortion Act
What did Phil Harris say a moral was?
A set of beliefs, values, principles and standards of behaviour.
What did the dictionary say a moral was?
A particular system of values and principles of conduct especially one held by a specified person or society.
Moral principles
Voluntary
Develop gradually
Rules are open to debate
Enforced informally
Voluntary example
Religious ideas
Develop gradually example
Morals associated with LGBT
Rules are open to debate example
Abortion
Legal positivists
Believe that laws are valid where they are made by recognised legislative power and don’t satisfy higher authority.
Jeremy Bentham
Law is a command expressing the will of sovereign.
John Austin 3 command theory
Laws are commands are issued by the sovereign.
Commands are enforced by sanctions.
Sovereign is one who is obeyed by the majority.
Professor HLA Hart
Primary and secondary rules which form the basis of functioning legal system.
Primary rules
Impose legal obligation as in criminal law or grant powers as in power to make will or contract.
Secondary rules
Concerned with operation of primary legal rules.
Secondary rules examples
Powers to make acts and precedents
Rule to amend or get rid of laws
Rule to allow courts to settle disputes and interpret the law.
Powers to make acts and precedents
Rule of recognition
Rule to amend and get rid of law
Overruling
Rules to allow courts to settle disputes and interpret the law
Literal rule
Natural law
For laws to be valid they must follow a higher moral authority
Aristotle
Natural for mankind to have as it’s laws.
Who was Aristotle?
A Greek philosopher in 4th BC
Who was Thomas Aquinas?
13th century catholic theologian
What did Thomas Aquinas create?
Divine law
What did the divine law say?
Rules implemented by God so we have a natural inclination to behave in a way that fulfils our purpose in life.
Who is Jon Fuller?
Professor
What did Jon Fuller say the purpose of law was?
Achieve social order through subjecting people’s conduct to the guidance of general rules by which they can control behaviour.
Changing morality
Arranged marriage
Sexuality
Drugs
Reasons why rules are obeyed by most
Moral obligations
Reasonable
Penalty/sanctions
What happened in the case of Turing?
Convicted for having a sexual relationship with a man.
What happened in the case of Bell?
Found that under 16’s did not have the capacity to consent to puberty blockers.
What happened in the Promfumo affair?
A Mp lied to the parliament about his affair with a Russian spy.
What happened in the nazi wife case?
False imprisonment however was just following laws of the time.
How does law reflect morality?
Law comes from moral and religious source.
Law changes to include moral change.
What is the development of coincidence of law and morality?
Laws reflection of morality.
Development of coincidence of law examples
R
Brown
Gillick competence
Law Reform
Same sex marriage act
Equality Act 2010
Law reform public morality
Sexual equality
racial equality
disability
Why do many morals not have legal backing?
Pluralism
paternalism
too difficult
Pluralist society
Society with many cultural groups of different origins leading to plurality of beliefs.
UK statistics
Asian ethnic groups 9.3%
Black ethnic groups 4%
What article protects the right to express views?
ART10
ART10 case
Open door
Parliament make laws specifically linked to morality
Individual MP’s do sometimes try to enforce morality through a private member’s bill.
MP enforcing morality example
Abortion bill
Legal enforcement of moral values
By parliament
Higher court becomes precedent
Tort
Criminal
Tort example
Donoghue
Occupiers liability
Dumbreck
Illegality
Brooks
Criminal
Ahulawalia
