law and morality Flashcards
What is the difference between law and morality
Law applies to everyone equally, morality is subjective to the individual.
Breaking the law is punishable by the state, breaking morals varies on the person
R v R Owen J
“I find it hard to believe it was ever common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse”
Lee v Asher’s Baking Company
showed how changing morals impact legal decisions
Summarise Pluralism in the UK
- Multiple parties, pressure groups, and interest groups compete for influence
- ECHR protects individual moral beliefs
- The state can still punish individuals who act against the law, even if they believe it is morally wrong
How does the law balance morality
- laws are made by parliament, a democratic process
- Fox hunting ban (2004)
Summarise the moralistic view
Law and morality are connected
Laws that violate morals varies principles are invalid
What was Lord Devlin’s quote about law and morality
“laws should protect society against harm. individual liberty should be curtailed to protect society”
Summarise legal positivism
- law is valid if made correctly, even if morally questionable
What did Jeremy Bentham say about legal positivism
“ a law which exists is a law, though we happen to dislike it”
What did John Austin say about legal positivism?
“laws are commands issued by the sovereign. disobey and suffer the sanctions”
What do modern legal positivist say about law and morality
Law and morality are separate
What does HLA Hart believe
That the law and morality should be separated
What did Hans Kelsen say about law and morality
“morality is no part of law”
Summarise natural law theory
- Law exists naturally based on right and wrong
- laws are only valid if they comply with morality
What did Aristotle say about natural law theory
“evil originates naturally or morally failing to fulfil part of all human nature”
What did Lon Fuller say about natural law
“to achieve social order through subjecting people to general rules by which they may orient their behaviour”
Summarise John Stuart Mill’s harm principle (liberal view)
- the law should only intervene when actions cause harm to others
- people should be free to make their own choices, even if theyre morally questionable
- laws should protect rights rather than enforce morality or religion
Summarise Professor Hart’s paternalistic view
- laws should protect individuals from their own harmful choices
- justifies laws like seatbelt requirements and drug prohibitions
- the state has a duty to guide or protect people from bad decisions
