Law & Morals Flashcards
Para 1
Sir John Salmond said that laws are the body of principles recognised and applied by the state in the administration of justice. Phil Harris said that morals are a set of beliefs, values, principles and standards of behaviour. Law can come from a relatively fixed place (e.g. Parliament) although it can be through precedent and delegated legislation, whereas morals can come from everywhere, e.g. your background, education and upbringing. Laws are enforced through punishments, such as fines or imprisonment in criminal cases and damages in civil cases, comparatively for morals, there may not be specific/formal enforcement, just consequence, such as being ostracised. Law may not develop very often, due to the priority of certainty, but when it does update, it will be an immediate change. However, morals are constantly changing over time, even though the change is slower and more gradual.
Para 2
One way the law has influenced/enforced morality is through the Smoking Ban (from the Health Act 2006). This made it illegal to smoke indoors in public places, such as restaurants. Before this, it was considered acceptable to smoke indoors, with it being common practice. However, nowadays many people would consider it morally wrong, showing how it has changed their opinion and morality. Also, the Equality Act 2010 reinforced opinions towards discrimination and prejudicial beliefs, changing opinions on such topics, with the world being more inclusive nowadays, showing how the Act influenced morality. Therefore, the introduction of both Acts (law) was able to influence and enforce morality.
Para 3
However, it may be the case that law and morality are not linked and law does not influence morality. For example, it may be hard for the law to be enforced on certain moral issues. This is the case for cheating/adultery, an act which many would agree is immoral but is also legally acceptable. This problem arises due to it being hard to enforce and define the specific issues that are immoral. Also, it can be hard to prove the acts occurred. This makes it very hard to enforce the law and define what kind of situations result in cheating. The fact that it is very hard to define when cheating arises shows how lwa cannot solve immoral acts and, thus, the two aren’t linked. As well as this, law and morality may not link due to morality’s importance not being ranked highly in comparison to other things. For example, certainty may be ranked before morality. This is because certainty allows for better preparation for trials and ensures lawyers and judges know what the precedent may be. This is the case in LNER v Berriman, where the courts chose certainty over morality by not giving Berriman a lookout and not giving compensation. This shows how morality may not be the most important thing in law, with certainty being prioritised. Therefore, law and morality may not be linked, due to there being more important aspects of law than morality. So, the law may not enforce morality due to the law not being and to enforce specific moral issues or the fact that morality’s importance is ranked lower than other aspects of law.
Para 4
The Natural Law Theory states that things are either right or wrong and so the law should enforce this natural order. We work out what is naturally right or wrong through our morality, therefore our laws should be based on our morals, and if a law is not in line with morality, it should not be followed. Aristotle was a natural lawyer, believing there were inherent things that were right and wrong, and that our man-made law should reflect this. Lord Devlin applied natural law to the Wolfenden report, believing that society is held together by a common morality. Therefore, he claimed the law should enforce and uphold this morality to maintain order. The test for whether something is immoral is whether the ordinary man would regard it with ‘intolerance, indignation, or disgust’. However, Devlin said the ordinary man should not have to think about what should be immoral, it should just be a feeling. Natural law can be problematic due to different philosophers having different opinions on what the natural law is, making it hard to know what laws should be made and followed. This is shown in the fact that people could directly question Devlin’s opinions, arguing that there is not really a common morality within society. Also, there can be many benefits to making law that is not connected to morality, e.g. controlling society and enforcing control. Therefore, natural law could be problematic in enforcing morality, due to differing opinions and views on what is immoral and how it should be treated.
Para 5
Positivism believes that the law has many purposes. It can be used to enforce morality, but it does not have to. This means that a law not being in line with morality would not be a problem. Jeremy Bentham believed in the utility principle, saying that good laws will maximise happiness but laws that don’t maximise utility are still valid. Professor Hart said that the law should not interfere with one’s freedom if other people felt a particular way about it and that basing a law on morality is undesirable. Hart went against Devlin, saying there is no common morality and so society will not fall apart if law does not set moral standards. Beyond this, Hart claimed that law enforcing morality is undesirable due to it limiting the development of our moral opinions, harming society. Despite this, positivism can make it harder to make law, due to there being multiple purposes and less clear what the law should be about. However, it can be argued that this creates flexibility, with it being less rigid by having lots of purpose. Also, using Bentham’s principle, it can create problems of justifying wrongdoings and issues of quantifying happiness. Finally, Hart contradicts himself by saying we do need a minimal degree of natural law to enforce shared morality, despite saying there is no common morality. Therefore, it can be argued that law should not enforce morality, due to it restricting moral development and it being undesirable for it to do so.
Para 6
Overall, law should enforce morality to a partial extent due to there being coincidence and reflecting current moral opinions. However, there is also divergence between law and morality, with there being many other areas that law can cover other than morality.
