Law and morality- should the law enforce morality? Flashcards
Whether the law reflects moral standards and attitudes of the day depends on what?
-The attitudes of the day
Example of a law that has changed with a changing perception of morality?
-Same sex marriage -2013
-This would have been impossible under previous generations
Main perspectives that can be mentioned?
-Legal Positivism, Natural law theory, J.S Mills and the Hart Devlin debate.
What is meant by legal positivism?
-Laws are valid when made by a legislative power not higher authority
Who are the two main advocates of legal positivism?
-Jeremy Bentham
-John Ausin
What did Jeremy Bentham believe?
-if we find a law offensive, it does not effect its validity.
-utilitarianism
What did John Austin believe?
Command theory of law
1.laws are commands issued by sovereign
2.commands enforced by sanctions
3. sovereign is one obeyed by the majority.
What is meant by the belief of natural law?
-The law should strongly reflect morality and ethics.
Who are the two main advocates of natural law?
-Thomas Aquinas
-Lon Fuller
What does Thomas Aquinas believe?
-All laws come from God
-We <3 the ten commandments.
What did Lon Fuller believe?
-for law to achieve social order
-law must satisfy 8 principles which make up the inner morality of law.
What does John Stuart Mill think about morality and law?
-society should not impose morality onto individuals
-freedom- Harm Principle (disregarding those with disabilities)
Who was there major debate between during the 1950s? FOLLOWING THE WOOLFDEN REPORT
-Hart V Devlin
What did the Hart- Devlin debate focus on? FOLLOWING WOOLFDEN REPORT
-should the law keep up with morality (especially homosexuality and prostitutes).
What did Lord Devlin believe? FOLLOWING WOOLFDEN REPORT
-good vs evil upholds society.
-bonds of morality loosened by private immoral conduct.
-if the ordinary man finds it of disgust it should be prohibited.
