Law And Morality Flashcards
Define rule
A general norm mandating or guiding conduct (Twining and Miers)
What are the two main theories relating to the nature of law
Legal positivism and natural law
Define legal positivism
The theory that laws are valid where they are made by the recognised legislative power in the state and don’t have to satisfy any higher authority
Who’s Jeremy Bentham and what is his premise
Utilitarian who wrote about what the law is and that philosophy should be concrete with what law is (morality not relevant to law)
Who is Austin and what does he think about legal positivism
Command theory that laws are based on:
Commands issued by uncommander commander (sovreign)
Enforced by sanctions
Sovereign is obeyed by majority
What does Hart think about LP
Seperate law and morality, 2 rule categories (primary and secondary) and they combine to form a workable legal system. Primary concerned with legal obligations and granting powers with secondary with operating legal rules like rules of change
What does Raz think about LP
Argues identity and existence of a legal system may be tested by reference to efficacy, institutional character and sources, with law being autonomous
What does Kelsen say about LP
Morality no part of law
Define natural law
Law should be based on morality and ethics
What does Aquinas think about NL
Four kinds of law, eternal (god) natural (natural human code) divine law commands of god, human law in accordance with natural. 3 moral principles, anything resists has a tendency to went to go on existing, all animals have a tendency to mate and being young up and humans have rational nature to want to know about god
What does fuller think about NL
Law serves purpose to achieve social order through subjecting people’s conduct to the guidance of general rules which they may orient their behaviour. If law achieves this purpose then it must satisfy 8 principles to make up inner morality (in existence, promulgated (public), prospective (set out in advance) clear and concise, not contradictory, not require things impossible to not do/do, constant, applied as stated
Define morality
Collective or personal
Normative or prescriptive
Mary warnock: ‘some people at some tile may regard things as a matter or moral right and wrong which at another time or in another place are thought to be matters of taste’
Do morals change over time and why
Yes as society progresses like abortion, Durkheim factors which contribute to breakdown: increasing specialisation of labour, growing ethnic diversity within society and fading influence of religious belief
What are some characterstics of legal and moral rules
Origins: legal can be traced back to sources ie common law like development of tort under donoghue and creation of fletcher tort
Moral rules more hard ie bible influence
Dates of commencement: legal rules generally have a start date Ie martial rape R v R 1991
Enforcement: can be enforced legally by courts following a procedure whereas moral can be enforced via bans or exclusion
Ease of change: legal can be changed ie parliament but morals change gradually
Certainty: legal rules can find precise content, sometimes with moral
Application: legal rules apply to everyone and moral range in application
Can views be varied in a pluralist society of
Yes different cultures coming together may vary significantly, ECHR attempts to keep morality and religion out of things ie Open door counselling 1992, abortion illegal but restraining women not being able to get info to other countries to get it done violated.
What is the relationship between law and morality
Often overlap, coincidence of legal and moral rules (ie golden rule sigsworth preventinf murderer getting mother’s estate is an overlap), use similar language ie distinguish right and wrong, legal rules can be strengthen when they coincide with moral rules.
Moral SL?
What does Mill say about legally enforcing moral values
Individual should be allowed to harm him or herself and society can only intervene when harm others but doesn’t apply to children. Free will important even if it’s immoral. Issues with mill’s approach including what’s harm? Do others society members include foetus?
What does lord devlin say about legally enforcing morals
Without shared ideas morals and ethics no society can exist, therefore society is constituted in part by its morality. Limited to right of society to interfere in private Immoral conduct. Hart: society shouldn’t interfere in morality unless in certain situations
What are some issues with the legal enforcement of moral values in contract law
Certain contracts can be void because of immortality (Pearce 1866, cabs for prostitues immoral)
Otkrite 2013: ‘public policy requires courts will not lend air to man who found his action upon immoral or illegal act)
Economic duress: illegitimate pressure must be distinguished from the rough and tumble of normal commercial bargaining pressure. If exclusion clauses oppressive then law steps in with CRA 2015
What are some issues reflecting morality in tort law
‘Duty of care to neighbour’ in donoghue biblical, but in McFarlane 1999 ‘what may count in a situation of difficulty and uncertainty is not the subjective view of the judge but what he reasonably believes that the ordinary citizen would regard as right’ so confusing
Duty of care to trespassers: Herrington 1972 changed law gives trespassers right to claim. Children particularly claim for injuries, act sets out where may be a legal duty in a 1(3) reflected morality of 30 years ago which has been criticised allowing too much discretion to judiciary and too fret a possibility of refusing a claim on public policy grounds
What does the rule in Rylands and fletcher tell us about law and morality
This SL rule reflects a persons moral responsibility for consequences of something escaping after being brought onto the land but could be argued that modern interpretation in Cambridge water shows a more legal viewpoint
