Morality And The Law(O) Flashcards
Laws rare rules.
Laws are rules and standards of behaviour prescribed by authorities and enforced by various sanctions. For a law to be successful it must be supported by a reasonable section of the population or it falls into disrepute and becomes meaningless. Law controls and directs human behaviour, a number of areas of law deal with different issues. Criminal law deals with anti social behaviour. Civil law deals with business disputes, contract law deals with commercial transactions, tort deals with negligence and nuisance.
Lord Justice Coleridge.
As Lord Justice Coleridge said in R v Instan 1893 “It would not be correct to say that every moral obligation involves a legal duty: but every legal duty is founded on a moral obligation.”
Moral issues that have developed in societies.
Many moral issues have developed through societies beliefs over centuries and have been supported by law. As society becomes more diverse a rift between accepted boundaries of moral issues widens. Different groups hold different views on what is right and wrong.
Morals.
These are beliefs about the ash that people living in a community should behave. Morals change over time and there are clear differences between age groups, ethnic groups, religious groups and other communities. They are “right”/”wrong” based. Views change over time,me.g. During the past 50 years attitudes towards single parents, sexual orientation, living together before marriage. Many changes of attitude have been developed through changes in the law. There are four key characteristic of morals.
1) Voluntary.
Morals are subjective, but people may be persuaded by others moral arguments even if they do not agree in it’s entirety.
2) Informal Enforcement.
Morals are enforced by informal sanctions e.g. Persuasion, disapproval, rebuke, social breakdown and isolation. For example bullying and intimidation is often considered “wrong” the perpetrator mat receive rebuke and isolation from others in attempt to shame the culprit and reform their behaviour while at the same time demonstrating sympathy for the victim.
3) Ought issues,
Most morals stands involve informing, persuading, forcing communities on how they should behave.
4) Time scale.
Morals have developed over thousands of years; they are deeply embedded I. Religion and social history. In the west we can see the influence of the Old and New testaments and Judaeo-Christian beliefs. In the east the influence of the Qur’an and Islam.
Law.
Law is compiles pry, enforced and timed.
1) Compulsory.
Law represents codes of social conduct which society has decided should be compulsory. It is a way of formally stating behaviour that is acceptable and unacceptable. All members of a country are expected to abide by the law with sanctions imposed on those that don’t.
2) Enforcement.
Parliament may pass an act which when comes into force will be enforced by authority e.g. Police, courts, prisons, trading standards, environmental health, DVLA, TV licensing.
3) Timing.
Law can be introduced immediately or within a time frame e.g. Human Rights Act was passed in 1988 but was enforced from October 2000.
Problems with Morals and Law.
Law enforces behaviour but law often has strong connections with morals and often with changing moral attitudes pressure can be placed on parliament to change the law. If this is hurried in the legislative process it can lead to ambiguous laws which can be difficult to apply in practice. E.g. The Hunting Act 2004, the Dangerous Dogs Act 1991, the Fire Arms Amendment Act 1997. Both were introduced swiftly after major incidents. Pit bull dogs had attacked children and adults killing and seriously scarring them resulting in public outrage for owners to control their animals. With the Fire Arms Amendment Act 1997, the Dunblaine massacre where a lone gunman entered primary school killing students and teachers, public outcry demanded legislation on how guns should be kept and stored.
Although most people will accept that murder is wrong and must be punished. Society has complex and diverse views on issues like euthanasia, abortion, homosexuality, same sex marriage, no smoking in public places, peaceful protest etc. in the case of Hammond v DPP 2004 where an evangelical Christian preacher was found guilty of criminal public order legislation when his crusade against immorality disorder in a public street.
The Hart v Devlin Debate.
This debate took place in 1957 and involved discussion on the legalisation of prostitution and homosexuality. The Wolfenden Committee explored this debate. Homosexuality was not legalised until 1967 and equality between homosexuals and heterosexual as late 2001. The problem arises in establishing what is the standard of the right minded person? Where should an individual’s freedom of choice begin and end?
Hart believed that law and morality should be kept separate and that morality should. Or influence the direction of the law. Private meal behaviour should be left to the individual and the state should not be involved in legislation on such issues providing no harm is done to others. However the question must be asked what is harm? R v Brown 1993 where homosexual practices involved consensual sadomasochistic practices where harm occurred, because of the harm it was decided in the House of Lords that action was illegal. What is truly private?if drugs are take. Privately should it be encroaching on the public arena, on the other hand drug taking can lead to theft, robbery and burglary to feed the habit.
Devlin believed that moral behaviour could be improved by using the law to support popular moral beliefs. Morals generally viewed as disapproving by the majority should be illegal and changing moral beliefs by the majority should be legalised. Devlin believed that common morality was essential for society. His view is supported in cases like Shaw v DPP 1961, Knuller Ltd v DPP 1972, R v Gibson 1990 and R v Brown 1992.
John Stuart Mill 1859.
I. His essay on liberty John Stuart Mill said, “the only purpose for which power can be exercised over any member of a civilised community against his will is to prevent ahem to others.” Individuals should be free to choose their own conduct as long as there is no harm to others, morality should not be forced upon them, but with the passage of time and changing beliefs in society, other aspects now need to be considered, e.g. Is harm direct or indirect? Who is defined as another person? This then gives rise to issues in today’s society relating to abortion, embryology, surrogacy, public decency aversion to sexual and homosexual practices in public, problems with marital coercion and Raleigh within marriage, pornography.
Professor Lou Fuller.
Natural law theorist’s state there is a higher law and law should be based on this moral code. In his essay The Morality of the Law Lou Fuller argues that there are eight meh requirements, in the absence of any of these, then, it is not a legal system.
1) Generality.
Rules, not ad hoc decisions.
2) Promulgation.
Rules should be made known to all.
3) non retroactivity.
Rules cannot work backwards in time.
4) Clarity.
The meaning of the law should be clear.
5) Consistency.
No conflict between laws.
6) Realism.
Laws should not be impossible to comply with.
7) Constancy.
Laws should not change frequently so as to cause confusion.
8) Congruence.
The administration of the rules should coincide with the information known to the public about the rules.
