Law & Morality^ Flashcards
Law
rules you have to follow from someone else, with consequences if broken
Morality
own opinions about what is right and wrong
R V R
Changing moral values can lead to developments in the law
Changed that its possible for a husband to be able to rape his wife
Lee V Ashers Baking Co
example of case with conflict between law and morality
Pluralism in UK
The coexistence of multiple cultures, religions and moral viewpoints
- law can’t completely reflect morality
In democracy, multiple groups complete for influence
- ensure no one dominates gov alone
Moral views are protected under the ECHR, - but the state can punish ind who break the law, even if it goes against their moral beliefs
Moralistic View
Law is connected to morality
The validity of law is measured by its conformity to moral principles
Laws that violate moral standards are considered illegitimate or invalid
- Regardless of their procedural correctness
Lord Devlin
Moralistic View
laws should protect society against harm
Individual liberty and freedom should be reduced to protect society
Example: should the court be involved in cases about consent of adults (R V Brown/BM/ Diane Pretty)
Legal Positivism
Laws are valid if made in the correct way by Parliament or judges regardless if they satisfy moral beliefs
Jeremy Betham
Legal Positivism
“a law which exists is a law, though we happen to dislike it”
John Austin
Legal Positivism
laws are commands issued by the sovereign, disobey the law and suffer sanctions
Modern Legal Positivists
Legal Positivism
HLA Hart insists on the separation of law and morality
Hans Kelsen
Legal Positivism
morality is no part of law
Natural Lawyers
Laws exist naturally as a result of understanding right and wrong
Laws are only valid if they comply with morality
Aristotle
Natural Lawyers
Evil originates naturally or morally failing to fulfil part of all human nature. This is the basis for natural law
Lon Fuller
Natural Lawyers
Law serves a purpose “to achieve social order through subjecting peoples’ conduct to the guidance of general rules by which they may themselves orient their behaviour”
John Stuart Mill
Liberal View
The Harm Principle: the law should only interfere in individual’s actions when they cause harm to others
People should be free to make their own choices, even if those choices are morally questionable or harmful to themselves
Law should focus on protecting individual right and preventing harm rather than enforcing moral or religious norms
Professor Hart
Paternalistic View
Law should intervene to protect individuals from their own potentially harmful decisions, even if they are not directly harming others
Justifies laws that restrict individuals’ liberty for the person’s own good (drugs)
Assumes that the state has a duty to guide or protect individuals from poor decisions
