Law and Morality

Question 1

What are laws?

Question 2

What are the two laws of English legal system?

Answer 2

• Legal Positivism
• Natural Law

Question 3

What is legal positivism?

Answer 3

• Believes that laws are valid where they are made by recognised legislative power in the state

Question 4

What does Jeremy Bentham argue about legal positivism?

Answer 4

• Bentham was a utilitarian and law reform
• He believed that the philosophy of law should be concerned with what law is
• The existence of law is one thing, its merit another. A law which exists is a law though we may happen to dislike it
• Morality is irrelevant to the law and the fact we disagree with law does not make it invalid

Question 5

What does John Austin argue about legal positivism?

Answer 5

• Austin developed the command theory of law
  1. Laws are commands issues by the uncommanded commander
  2. Such commands are enforced by sanctions
  3. A sovereign is one who is obeyed the majority
• The sovereign is someone who the society obeys habitually
• Parliament will give authorative powers to a small number of individuals
• Sanctions in law are straight forward such as disobeying and suffering a punishment

Question 6

What does Hans Kelsen argue about legal positivism?

Answer 6

• Morality is no part of the law, it is neither good or bad

Question 7

What does Joseph Raz argue about legal positivism?

Answer 7

• A legal system can be tested by reference of efficacy, institutional character and sources

Question 8

What does Professor HLA Hart argue about legal positivism?

Answer 8

• Criticised Austin as being too simplistic as we must separate law and morality
• Primary rules impose legal obligations
• Secondary rules are concerned with the operation of primary rules such as the criteria for primary rules, how legal rules are formed and how the courts settle disputes

Question 9

What is natural law?

Answer 9

• Natural lawyers reject legal positivism and believe that the validity of man made laws depend on laws being compatible with a higher moral authority

Question 10

What does Aristotle argue about natural law?

Answer 10

• He debated the question of how humans act and believed that evil starts when we fail to fulfil part of our human nature

Question 11

What does Thomas Aquinas argue about natural law?

Answer 11

• Aquinas combined the philosophy of Aristotle and Christian theology which set out four kinds of laws in his work
  1. External Law = All things pursue their own god. Given goals are created by god which means they can have some understanding of eternal law
  2. Natural Law = The moral code which humans are inclined towards meaning what is good we naturally are inclined to. Man made law must then conform to this
  3. Positive Divine Law = The commandments of god
  4. Positive Human Law = In accordance with natural law

Question 12

What are the goals worked out from moral principles according to Thomas Aquinas?

Answer 12

1. Anything that exists has a natural tendency to go existing therefore murder is wrong
2. All animals have a natural tendency to mate and bring up youth therefore we have to protect children
3. Humans have a rational nature which inclines us to know the truth and live ordered lives
   - These goals help work out moral principles that should be reflected in man made laws

Question 13

What does Lon Fuller argue about natural law?

Answer 13

• Fuller wrote the Morality of Law rejecting positivism and religious forms of natural law
• The purpose of the law is to achieve social order through subjecting people’s conduct to the guidance of general rules which they orient their behaviour
• This must satisfy 8 principles of inner morality of law

Question 14

What are the procedural version of natural law according to Lon Fuller?

Answer 14

1. Must exist
2. Laws must be public
3. Set out in advance
4. Clear and understood
5. Not contradictory
6. Constant and up to date
7. Applied as stated

Question 15

What is the definition of morality?

Answer 15

• A particular system of values and principles of conduct help be a specific person or society
• This can be personal or collective
• Morality is normative specifying what must be done

Question 16

Can morals change?

Answer 16

• Moral attitudes can change over time. However as society has become multicultural, there are increased views on issues in society