law and morality Flashcards
what is a rule
A general norm which tells you what to do or guides conduct. Usually not morally binding bbut followed due to their context e.g rule of sport
what is the formal definition of legal rules
‘body of principles recognised and applied by the state in the administration of justice’- sir john salmond
what is a legal rule
Different to habits or practices as they are more enforceable (hart)
why is this enforced (3)
Moral obligation (such as crimes)
Fear of penalty
Seen as relevant and legitamate
what is a moral rule formal definition
’a set of beliefs, values, principles and standards of behaviour’ (phillip harris)
what is a moral rule
Personal beliefs- usually linked to relgion or our upbringing
Sometimes reflected in law (e.g murder) but not always (e.g adultery)
what are key features of a legal rule
can be introduced, altered and repealed instantly, but action to do this by parliament often only occurs after morals have been changed
Rules which are binding and enforceable- a mandatory code of conduct
Are followed because:
Fear of penalties
Seen as legitamate (made by an elected body for our benefit)
Tell us how to behave
Likely to reflect the morals of society
Apply to all people in the same way
what are some key features of moral rules
develop and change over time- cannot be immediately altered
Change slowly accoreding to the will of the people
Relfect our beliefs and our religion
Voluntarily followed because of a sense of shame and guilty
No official punishment
Tell us how to behave
Likely to reflect the laws of society
Likely to vary from one person to the next
what are 2 case examples of morality changing/ affecting the law in society (criminal law cases)- a03
r v r 1991: martial rape criminalized (shows how slow law is adapting)
Re A (conjoined twins0: religious views of twins parents overruled in favor of medical science
examples of moral rules which are not reinforced legally in any way- a03
adultery (although this is a ground for divoice under matrimonial causes act but no criminal charges)
moral duty to help someone who is in danger- not legally enforced in tprt or criminal law as it could be (goof samaritan act)
examples of the law changing our moral attitudes in society- a03
road safety act- drink driving
health act- smoking in public places
what is pluralism
the idea that society exists with lots of different view points and opinions- and all of these are allowed to co exist together
what does this then mean (3 factors it may depend upon)
aw is constantly trying to reflect a wide range of views and moral opinions in our pluralist society:
moral views ofetn change between generations
change depending on culture, location, tradition, and religious influence
morality in society changes a lot over time (e.g marital rape was not a crime until 1991- R v R)
who discussed pluralism and the difficulty of creating a common code of morals
Emile Durkheim
what 2 things were stated
in a small community it may be possible to find a commen stet of motald eberyome agrees with
however, in our pluarlist society this is imoissible as opinions and people are diverse due to specialosation of labour, ethnic diversity etc
what case shows it may be hard to enforce moral code
Re A (conjoined twins
where else is this seen
European Court of Human Rights, where the diverse and pluralist views of not only one country but a large number of countries need to be considered
whats a case example of this
Seen in cases such as otto- preminger involving porn film
Use of margin of appreciation helps the ecthr to give some freedom and flexibility to states to decide their own limitations
Echr includes ‘public and health morals’ as a legitamate reason for limiting certain qualified rights in the article (e.g 8,10,11)
what are examples of moral laws made by parliament (2)
R v R- law surrounding marital rape was changed
Shaw v DPP- where judges created the common law offence if outraging public decency
examples of these rules made through the common law by judges (2)
R v R- law surrounding marital rape was changed
Shaw v DPP- where judges created the common law offence if outraging public decency
what are the issues with this (4)
been slow with changing these laws
often avoid passing laws which have a moral element as they are seen as controversial and may divide society
Political parties rule the timetable of debates in Parliament and are unlikely to schedule debates on laws- may divide opinion and affect chances of winning next election
judges have been criticised for being out of touch with society when passing decisions in moral cases
Lack of diversity in the profession means a lot of judges are privately educated, white men who may not be in touch with the moral views of society
E.g. compare potential homophobia in decisions of R v Brown / R v Wilson
aristotle meaning (therories stuff now)
believed all law must coincide with Natural Law – the Law of God
aquinas meaning
any law which was a variance on divine law (Gods law) was corrupt and therefore not legally valid
lloyd
there are “objective moral principles which depend upon the nature of the universe”
fuller
an “inner morality of law”
There are absolute values and “morals” – right and wrong exist under higher/divine law
Therefore there is a fundamental moral requirement to the law
whats an example of this
murder/ theft being based off the 10 commandments
(like the you shall not steal, you shall not murder etc)
who proposed positivism
Hart
what does this state
natural law is like ‘nonsense on stilts’ it couldn’t be proven. He argued that laws are simply commands from a sovereign that most people follow, enforced by consequences, regardless of morality.
whats a case example of this
Gillick (children who are Gillick competent can consent to medical treatment – whether parents like it or not)
Abortion is legal even if some may object to it
what are 3 strengths of naturalism
Based on reason, making the law accessible to anyone who applies logic, ensuring certainty and predictability.
Does not consider unpredictable human emotions in decision-making.
Legal reasoning reflects a single moral perspective, whereas God’s law is rooted in broader morality.
disadvantages of natural law
Deciding what is “natural” can be challenging, as seen in questions like whether doctors should prolong life when death is a natural consequence of illness.
Some principles of Natural Law can lead to absurd consequences because they oversimplify human differences, such as prohibiting infertile couples from having sex.
Natural Law’s vague and general rules are not easily adaptable to diverse views or specific situations in different contexts.
advantages of positivism
Citizens can live their private lives without legal intervention as long as they are not causing harm to others.
The law should intervene to prevent harm to others, ensuring protection for the vulnerable.
Provides flexibility for social change by allowing morals to evolve over time, as laws do not impose rigid moral standpoints.
weaknesses of positivism
Critics argue that the law should regulate morally objectionable behavior to prevent harmful actions in society.
Excessive protection of privacy can put vulnerable groups, like children, at risk by limiting their ability to report harm.
Ignores that most ideas of right & wrong and therefore most existing laws (including not to harm one another) come from moral perspectives historically. Just one set of morals
the debate- who had this debate
hart and devlin
what is the wolfendon report 1957
Recommended the legislation of homosexuality on the basis that the law had no place to intervene in ‘private morality’ and private acts between to consenting adults
what was harts opinion of this
in favor of report
what was devlins opinion on this
opposed this and saw it as too liberal (tolerant, respective)
what did lord devlin state
Society needs moral consensus and it is up to the law to uphold and frame this
Morals should reflect the majority view in society (such as how Parliament works)
- Individuals should have maximum freedom and privacy in keeping with the morals.
- Punishment only for behaviour which is “so abominable that its very presence is an offence”.
what is a bill that support this
*The Assisted Dying Bill was not passed and law surrounding euthanasia has a heavy moral aspect (life and death) which shows natural law’s influence over the law
what was professer harts view
Law should not enforce moralistic views as it prevents morals from being able to adapt and change in society
Majority in society may object to something due to ignorance/prejudice/misunderstanding, and not just due to moral views
- Punishment would be harming someone who hasn’t harmed anyone else.
- Free choice leads to learning through experimentation.
- Exercise of free choice is a moral value.
- Regarding sexual morals, suppression of sexual urges can cause harm to the individual emotionally.
Law should not punish those indulging in behaviour which may disgust others but does not harm anyone
what is a law and an act (think articles) that supports this
Sexual offences act 1967 legalized homosexuality
Obscenity laws/ Article 10 ECHR allow expressions which ‘shock, disturb and offend’
strengths of hart (2)
Recognizes that morals are necessary in society to uphold a basic standard of right and wrong, and should be reflected in law
Advocates for high moral standards in society
weaknesses of hart (2)
Imposes one set view on society – this has been established to be impossible in pluralist societies (Durkheim) so may not be practical.
Can stifle progression in society as often the moral standpoint reflected in law is too rigid
strengths of devlin (3)
Hart’s positivist view recognizes that change happens in society over time and the law needs to adapt to this.
Hart’s view supports pluralist societies as the law is not intervening unless harm is caused to others
Protects individual freedoms
weaknesses of hart
If law does not set a moral standard there is a risk of eroding all morals in society.
Can put vulnerable people at risk – if focus is on individual freedoms, there is no guarantee that harm is not being suffered in private as nobody is checking.
