law and morality

Question 1

What is law?

Answer 1

Austin developed the command theory

• law is a command from a sovereign whom everyone must obey. it is reinforced by sanctions
• law is the expressed wish of the sovereign
• it is distinguishable from other commands such as those from God or from an employer

Question 2

What are morals?

Answer 2

• moral values of communities lay down the framework for how people should behave
• morality can differ from culture to culture and from individual to individual, although some behaviour is universally unacceptable
• morality is generally to do with beliefs, so may be affected by religion. (Christianity the bible, Islam the Qur’an)
• we all have a moral code of some kind which defines what we think is and is not acceptable behaviour
• the law of a country will generally reflect the moral values accepted by the majority of the people

Question 3

The diversity of moral views

Answer 3

• Durkheim - it is almost impossible to find a single set of moral values that would be acceptable to all the members of a modern society.
• the views of different societies and even within a society can vary significantly on different ethical issues (such as, euthanasia, pornography, prostitution etc.)
• however, there do appear to be certain core morals which are generally associated with life and death issues
• however, even then there is also disagreement
• while most people see any form of killing as wrong, there are vastly opposing views on whether abortion is the taking of a human life, or merely a woman exercising rights over her own body
• morals can clearly change and develop, for example views on homosexuality have altered dramatically since the trial of OSCAR WILDE

Question 4

Differences between law and morality

law (origins)

Answer 4

• it is generally possible to trace legal rules back to a source
• for centuries the most creative source of legal rules was the common law (such as tort and contract, which have been developed incrementally by judges)
• during the 20th century, parliament became increasingly active as a source of law (E.G. British Railways Board v Herrington) following the decision in 1984 parliament passed the occupiers liability act.
• in recent times, the EU has become a major source of law making in the UK through treaties, directives, regulations and decisions
• for example, a 1993 directive established a 48-hour max. working week

Question 5

Differences between law and morality

morals (origin)

Answer 5

• moral rules are usually more difficult to trace back to a precise origin
• for many, morality is based upon religious teaching, thus holy texts. this will form the basis for their moral outlook E.G. marriage, pre-martial sex
• for others, morality is based upon upbringing, upon peer views, or upon the leanings of their own consciences

Question 6

Differences between law and morality

law (date of commencement)

Answer 6

• legal rules generally have a start date. Acts of parliament come into force at a specific time, either at midnight of the day of which they receive royal assent, or a later specific date.
• E.G. the human rights act 1998 which came into force 1st October 2000
• similarly, EU Law becomes operative on a given date
• judicial precedent operate from the date of the final decision

Question 7

Differences between law and morality

morals (date of commencement)

Answer 7

• moral rules do not have a specified date, as they are built up over time in relation to wider attitudes. E.G. pre-martial sex which has undergone significant change since WWII

Question 8

Differences between law and morality

law (their enforcement)

Answer 8

• legal rules can be enforced. In criminal law sanctions are available where someone breaks the law
• in tort law and contract law damages are awarded

Question 9

Differences between law and morality

morals (their enforcement)

Answer 9

• sanctions may also be available for those who breach moral codes E.G. a member who uses offensive language may be excluded from sports or social club
• moral rules are enforced through disapproval or social ostracism, E.G. when taking dugs in the family home and being kicked out to avoid harm to younger siblings
• moral rules are less enforceable than legal rules

Question 10

Differences between law and morality

law (their ease of change)

Answer 10

• in theory, legal rules are relatively easy to change
• parliament has authority to pass a law whenever it wants this may be due to emergency or do to a distasteful court judgement, a proposal from a law reform body or because of public pressure
• in practice, however parliament is often slow to respond to change
• courts also have the power to change legal rules E.G G and R 2003

Question 11

Differences between law and morality

morals (their ease of change)

Answer 11

• moral tend to change gradually, over decades or centuries
• E.G. attitudes to cigarette smoking have become more negative, this has been encouraged by health warnings, by restrictions upon advertising
• it is not possible to identify a particular date, when intolerance towards smoking became the dominant attitude, developed over time

Question 12

Differences between law and morality

law (certainty of conduct)

Answer 12

• it is normally possible to discover the precise content of legal content E.G. s9 theft act 1968
• decisions of judges will be reported in law reports and newspapers
• however, uncertainty may still arise when an act is amended E.G sexual offences act 2003 where intent to rape will no longer provide the MR for a burglary conviction
• uncertainty may also arise where there are apparently conflicting precedents E.G. cases of brown and Wilson

Question 13

Differences between law and morality

morals (certainty of conduct)

Answer 13

• the content of moral rules may also be clear E.G. rules on etiquette found in books
• however, knowledge of the content or moral rules can often only be acquired informally through exposure to them in the settings where they are applied E.G. football pitch
• each setting will have its own morals, the rules and standards of what is acceptable conduct

Question 14

Differences between law and morality

law (application)

Answer 14

• legal rules apply to everyone and must be obeyed by everyone E.G. driving on the left

Question 15

Differences between law and morality

morals (application)

Answer 15

• moral rules range in application from enjoying almost universal adoption to having only marginal acceptance

Question 16

The relationship between law and morality

the Hart - Devlin debate

Answer 16

sparked by the publication in 1957 of the Wolfenden report on homosexuality and prostitution

• law has a role in preserving public order and decency, but “it is not, in our view, the function of the law to intervene in the private life of citizen, or to seek to enforce any particular pattern of behaviour”

therefore recommended the decriminalisation of consensual homosexuality for men over the age of 21

Question 17

The hart - devlin debate

lord devlin

Answer 17

lord devlin wrote that “without shared ideas on politics, morals, and ethics, no society can exist” is constituted in part by its morality

argued that the fabric of society is dependant upon a shared or common morality: where the bonds of that morality are loosened by private immoral conduct, the integrity of society will be lost and society will be liable to disintegrate

society or law should interfere with the private life of citizens however there are limits to this: “there must be toleration of the maximum individual freedom that is consistent with the integrity of society

he accepted that personal preferences, or likes and dislikes, should not form the basis for decisions about what immoral conduct should be outlawed

he developed an apparently objective test, that of the reasonable or ordinary man, to help decide where the boundaries are to be drawn: only where immoral conduct is regarded by this ordinary man with tolerance, indignation, or disgust, should it be prohibited by law

lord devlin’s morality is based upon convention: based upon what is generally regarded by society at large as being the acceptable and desirable state of affairs

it is therefore a relative rather than an absolute morality, as it is not based upon any higher authority regarding good and bad, or right and wrong

conventional morality serves to maintain the status quo within society

in some circumstances this would allow for the continuation of practices that might be regarded as morally repugnant by other societies E.G. polygamy, apartheid and slavery

Question 18

The hart - devlin debate

professor hart

Answer 18

professor hart proposed a more limited role for the law in the enforcement of morality, society should not interfere with private moral or immoral conduct

however, hart then limited the application of this general principle by sanctioning the enforcement of morality in certain situations

first of all, he accepted that enforcement is permitted when one of society’s dominant moralities is being eroded by a true threat to the cohension of society

such a threat, though, has to be more than merely a challenge to society’s code of conduct: there must be evidence that it creates a genuine public nuisance

hart’s discussion of the offence of bigamy illustrates this approach, in a country where deep religious significance is attached to monogamous marriage and to the wedding service, the law against bigamy should be accepted as an attempt to protect religious feeling from offence by a “public act desecrating the ceremony”. the bigamist is punished not for the act of bigamy itself, but for the offence he causes to the feeling of others

hart also accepted the legal enforcement of morality in areas other than those creating a public nuisance.

the taking of drugs and consensual euthanasia are two areas where he believed people need to be protected against themselves

on the specific issues of homosexuality, hart attacked devlin for believing that it threatened society with disintegration

Question 19

The hart - devlin debate

discussion between the two

Answer 19

devlin accused hart of being inconsistent. he challenged hart, saying: “bigamy violates neither good manners nor decency. when committed without deception, it harms no one”.

hart argued that devlin’s position on homosexuality was tantamount to declaring that any change in morality threatened the disintegration of society

he pointed out that lord devlin’s approach would cause society’s values to stagnate, to become permanently fixed at one point in time