Morality A01 Flashcards
Define Legal Rules
John Salmond - “The body of principles recognised and applied by the state in the administration of justice.”
Define Morals (Harris)
set of beliefs, values principles and standards of behaviour shared by society
Define Morals (Durkheim)
simple societies have set morals shared by all, pluralist societies have varied morals that differ on class, occupation, ethnicity, etc.
How does the law reflect majority moral views
stigma surrounded with ‘true crimes’ murder, rape, theft = harsh sentence + punishment
Examples of changes in morality influencing the law
R v R
Sexual Offences Act 1967
Marriage (Same sex couples) Act 2013
R v R
Marital rape made an offence
Sexual Offences Act 1967
decriminalisation of homosexuality
Marriage (Same Sex Couples) Act 2013
homosexual marriage legalised
Changes in law influencing changes in morality
Human Fertilisation and Embryology Act 1990
Abortion Act 1967
Gillick v West Norfolk Health Authority
Human Fertilisation and Embryology Act 1990
IVF legalised
Abortion Act 1967 legalisation
legalisation of abortion
Gillick v West Norfolk Health Authority
introduced ‘gillick competence’ regarding consent
Natural law theory
-believes laws should reflect morals
-law coming from higher authority (God)
-if law doesn’t reflect morals = shouldn’t be followed
Aristotle
belief in natural law (considered a founder)
Aquinas
all law should come from God
Fuller
concept of “internal morality” – all legal systems must adhere to internal moral standards (believed in natural law)
Bentham
the law should ensure the greatest good for the greatest number of people (legal positivist)
Hart-Devlin debate
arose from the Wolfenden Report (1957), which recommended decriminalising private consensual homosexual acts in England
Devlin’s view on the report
-against the report
-legal moralism
-the law should enforce society’s shared moral values to preserve social cohesion
Hart’s view on the report
-supported the findings
-legal positivism
-the law should not enforce morality unless harm to others is involved (as this restricts freedom)
Devlin’s beliefs regarding morality
- morals based on right-minded ordinary reasonable man’s view + this should be the law
- law should have maximum freedom + privacy
- the law should set the very minimum standard of morality
Decision’s supporting Devlin’s beliefs
R v Brown - defence of consent failing for sadomasochist acts
R v Gibson - freeze dried feotus earings = public indecencey
Hart’s beliefs regarding morality
-influenced by John Stuart Mill – law enforcing morals does not allow morals to change and develop
- the reasonable minded ordinary reasonable man may object to certain behaviour because
of ignorance, misunderstanding, and prejudice – NOT morality - punishment harms the individual, where they have not harmed anyone
Decisions supporting Hart’s beliefs
Human Fertilisation and Embryology Act 1990 - legalisation of IVF
Gillick v West Norfolk Health Authority - widening access to medical treatment + modernising consent
