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.