Law and Morality

Question 1

What is law?

Answer 1

-Rules and regulations that are objective and not necessarily fault- based e.g. speeding.

Question 2

What are morals?

Answer 2

Subjective personal codes of values or beliefs that are based on levels of fault and determine what is right or wrong, e.g lying.

Question 3

Where is there an overlap of law and morality?

Answer 3

Murder is against the law and is also morally wrong.

Abortion and euthanasia also cause tension between legal and moral rules.

Question 4

How is there diversity of moral views in a pluralist society?

Answer 4

Uk is a pluralist society which is where there is more than one culture, race, religion, political party, language, ethnic origin, set of customs and traditions, social class.
- Diversity should be celebrated, not tolerated. Can lead to tensions, should the law involve itself in matters or moral importance to some groups?

Question 5

Relationship between law and morality:

How are they made?

Answer 5

Laws; made by formal institutions, e.g. parliament and the courts (common law may have its own basis in morality).
Morals; evolve as society evolves, no formal creation (10 commandments in the Bible or the Koran may have been and attempt to create a formal code.

Question 6

Relationship between law and morality:

Time they take to make?

Answer 6

Laws; can be instantly made or repealed (often takes time + public pressure - the Human Rights Act was passed in 1998, years after the Universal Declaration of Human Rights in 1948)
Morals; change with society’s attitudes, slow transitional period. (can be rapid, such as during the 1960’s when contraception, sex outside marriage and the use of recreational drugs became widely acceptable).

Question 7

Relationship between law and morality:

How are they established?

Answer 7

Laws; existence can be established, (may not make them right. The defence to may many war crimes was that the D’s were obeying the law)
Morals; only vaguely defined, (may be general agreement on some issues such as murder, but not on others such as abortion).

Question 8

Relationship between law and morality:

What happens when they are broken?

Answer 8

Laws; attracts some form of sanction/punishment/remedy enforced by the state.
Morals; breaching moral standards results in social condemnation, as opposed to an organised system of enforcement.

Question 9

Relationship between law and morality:

Societies attitudes to them?

Answer 9

Laws; irrelevant (disputes over tampon tax) in a democracy this can only be a short - term position.
Morals; reflect societies values and beliefs.

Question 10

Relationship between law and morality:

Are the required?

Answer 10

Laws; obligatory

Morals; subjective

Question 11

Relationship between law and morality:

Liability?

Answer 11

Law; not fault based (strict liability)

Morals; fault based.

Question 12

Legal enforcement of moral values?

Answer 12

Lord Devlin devised 4 key principles for parliament to bear in mind when deciding which moral ‘offences’ ought to be prohibited by law.

Question 13

What are Lord Devlin’s 4 key principles?

Answer 13

1) Individual freedom to be allowed must be consistent with the integrity of society.
2) Law makers should be slow to change laws which protect morality.
3) Privacy must be respected as far as possible.
4) Law is concerned with minimum rather the maximum behaviour, i.e law sets out a minimum standard o behaviour; societies standard should be higher.

Question 14

Should the law be used to enforce moral values?

What are the two theories?

Answer 14

• Positivism; maintains that law and morals should be kept separate.
• Natural Law; law should enforce moral values.

Question 15

Positivism theorists:

H.L.A Hart

Answer 15

“Laws should only intervene where immorality causes harm to the society or harm to the individual concerned”

Question 16

Positivism theorists:

John Stuart Mill

Answer 16

Power can only be exercised over an individual against his will is to “prevent harm to others. His own good is not a sufficient warrant”

Question 17

Positivism theorists:

Jeremy Bentham

Answer 17

Natural law theory is “nonsense upon slits”

Question 18

Positivism theorists:

Aristotle

Answer 18

The law should be reason free from passion.

Question 19

Natural Law theorists:

Lord Devlin

Answer 19

“Error of jurisprudence to separate crime from sin”

“The suppression of vice is as much the law’s business as the suppression of subversive activities”

Question 20

Natural Law theorists:

Lon Fuller

Answer 20

Referring to laws made by Germany under the Nazi regime, some laws are so immoral that they must be invalid.

Question 21

Natural Law theorists:

St Thomas Aquinas

Answer 21

Natural law theory is a “dictate of right reason”.

Question 22

Positivism theorists:

Wolfenden Report 1978

Answer 22

“There must be a realm of private morality + immorality which is, in brief and crude terms, not the laws business”

Question 23

Overview of Law and Morality

Answer 23

• Difficult to take a theoretical position on the arguments, as we live in a pluralist society. Judges often faced with tough decisions which are matters of life and death - arguments become much harder to polarise.

Question 24

Case of conjoined twins, Jodie and Mary. - Positivism

Answer 24

• Only way to save Jodie’s life was for doctors to perform surgery which would kill Mary.
• Lord Justice Ward said - “this is a court of law, not a court of morals”

Question 25

Rv Wilson - Positivism

Answer 25

D branded initials on wife’s buttocks with a to knife, at her request. Her skin became infected and doctor reported matter to the police + husband was charged with ABH.
Russell LJ - not a “proper matter for criminal investigation, let alone criminal prosecution”

Question 26

Rv Brown - Natural law

Answer 26

D’s engaged in sadomasochism including physical torture.

Lord Templeman - “Pleasure derived from the infliction of pain is an evil thing”

Question 27

Pretty v DPP - Natural law

Answer 27

Pretty attempted to change the law so she could end her own life.
Lord Bingham - Task of committee is “not to weigh or evaluate or reflect those beliefs + views or give effect to its own but to ascertain + apply the law of the land as it is now understood to be”.