Morality Flashcards
1
What is law? Laws are rules and rules are defined by Twining and Miers as “a general norm mandating or guiding conduct”. Law and morality has a strong connection as they both determine how we behave. Professor Hart argues that we obey rules because they carry with them a moral obligation, the rule is reasonable and relevant and a penalty may be imposed if the rule is broken. In society there are two rules we live by, legal and moral rules.
2
What are morals? OED defines them as a ‘particular system of values and principles of conduct, especially held by a specified person or society’. The problem with morality is, according to Durkheim, that we live in a pluralist society. This means that people have different moral values and this can make it difficult to identify moral rules within the law . There is, therefore, not one standard to apply as what one person may consider immoral, others may not. i.e euthanasia, drug use, prostitution etc.
3
Differences between law and morals, 1) Morality develops over time whereas a law can be introduced immediately, 2) Morality cannot be deliberately changed where as law can be, 3) Morality depends upon a voluntary code of conduct where as the law is enforceable. 4) Laws have universal application whilst morals only apply to those who subscribe to that viewpoint.
4
Similarities between law and morals, 1) legal rules and moral rules are both normative – they both dictate the way we behavem, 2) Many of our laws are also moral rules at the same time, major breaches of a moral code will also often be against the law, for example, murder, 3) Moral standards of a society will often influence the development of the law
5
There are several contradictions though – abortion was legalised in 1967 but still causes conflict. Adultery and incest are both considered morally wrong, but only incest is forbidden by law. Legal change tends to lag behind moral change. For example in R v R (1991) rape within marriage became a crime, but moral attitude towards this had changed a long time before.
6
Influence of morality on contract law - Judges have to make decisions based upon what they think is morally right for both parties to a contract – this can become precedent if done by higher courts. For example, in Peace v Brooks, a taxi driver’s contract with a prostitute to use his cab for trade was declared void because of immorality. Exclusion clauses can be immoral if they are oppressive and there is no alternative for that party to the contract – this is why they are excluded from the CRA (2015). In Misrepresentation, Fraudulent Misrepresentation voids a contract showing that creating a contract through fraud is immoral. This is shown in Derry v Peek
