Natural law: Law and Morality

Question 1

What is legal positivism?

Answer 1

The theory of law that is based on the idea that laws are valid where they are made by the recognised legislative power in the state and do not have to satisfy any higher authority.

Question 1

What is a rule?

Answer 1

Defined by Twining and Miers in ‘How to do things with Rules 2014’ as a general norm mandating or guiding conduct.

Question 2

What is John Austin’s view on morality?

Answer 2

• He takes a positivist approach.
• Once laws are put in place, they are binding upon people whatever the morality of their content.
• Law is a command from a sovereign that is reinforced by the availability of a sanction.
• His view is criticised by HLA Hart because it is difficult to identify a sovereign in many states or many areas of law.

Question 3

What is H.L.A Hart’s view on morality?

Answer 3

• He takes a positivist approach.
• There are two categories of rules: primary and secondary.
• Primary rules impose legal obligations or grant powers e.g. the power to enter a contract identified by the rules of recognition.
• Secondary rules are concerned with the operation of primary legal rules identified by rules of change.
• Rules of adjudication enable the courts not only to settle disputes but also interpret the law.
• He does not accept any connection between law and morality: The validity of the law is not dependant upon its moral acceptability.
• For laws that are morally repugnant, obedience is voluntary.

Question 4

What is natural law?

Answer 4

• Theory emphasises that law should be based on morality and ethics.
• Natural lawyers believe that the validity of man made laws depend on their compatibility with a higher moral authority.
• Where laws do not satisfy this higher moral authority, then those laws lack validity.

Question 5

What is Thomas Aquinas’ view on morality?

Answer 5

• In his work ‘Summa Theologica’ he establishes that the highest law is eternal (divine) law which governs everything within the universe including moral rules where man must conform to in order to attain salvation.
• For example, the 10 commandments contained within the Bible, removes doubt about the moral rules because natural law is derived from it.
• Human law is derived from natural law as it applies its principles and may lack validity where the fail to conform to this higher authority.

Question 6

What is Emile Durkheim’s view on morality?

Answer 6

• Morality comes from the norms and values of society and maintains social order.
• Morality is intertwined with two types of social solidarity:
  
  • Mechanical - characteristics traditional and pre-industrial societies where moral rules are based on a collective conscience.
  • Organic - characteristics modern, industrial societies where moral rules are based on a cooperation and interdependence among different social roles.
• Identified factors that could potentially cause the breakdown of morality:
  
  • the increasing specialisation of labour
  • the growing ethnic diversity
  • the fading influence of religious belief

Question 7

What is morality?

Answer 7

A system of values and principles of conduct concerning with issues of ‘right’ and ‘wrong’.

Question 8

What are the characteristics of legal and moral rules?

Answer 8

• Origin
• Date of announcement
• Enforcement
• Ease of change
• Certainty of content
• The way rules are applied

Question 9

What is origin?

Answer 9

• The ability to trace legal rules back to a source.
• Morality originate from religious teachings such as the 10 commandments.
• Moral rules inform attitudes towards issues such as premarital sex and theft.
• Moral rules may also come from individual upbringing through learning their own conscience.

Question 10

What is date of commencement?

Answer 10

• When a law comes into force e.g. Theft Act 1968.
• Morals may not have a specific date to its change as it evolves overtime.

Question 11

What is enforcement?

Answer 11

• When legal rules are implemented and instilled following a designated procedure with appropriate sanctions such as criminal penalties or civil damages.
• Moral rules are normally enforced through public disapproval but are less enforceable than legal rules.

Question 12

What is ease of change?

Answer 12

• Legal rules are easy to change as parliament has authority to pass a law whenever it wants, however, is often slow to respond to change e.g., Dangerous Dogs Act 1991.
• Moral rules change gradually e.g., Smoking in public buildings.

Question 13

What is certainty of content?

Answer 13

• It is normally possible to discover the precise content of legal rules through Acts of Parliament like Theft Act 1968.
• Moral rules may also be clear, but the content may be acquired differently such as through personal exposure.

Question 14

What is application of the rules?

Answer 14

• Legal rules apply to everyone.
• Moral rules may range in application because of differing views in a pluralist society.

Question 15

What is a pluralist society?

Answer 15

• A diverse society, where different people believe different things.

Question 16

What is John Stuart Mill’s view on the enforcement of morality?

Answer 16

• He uses the term ‘tyranny of the majority’ to describe where the elected majority in gov/society force their views on others, thereby restricting their freedom.
• He argues it is necessary to protect individuals against the tendency of society to impose its own ideas and practices.
• Although Mill accepts that rules governing an individuals conduct must be imposed, he developed the ‘harm principle’ test to consider where society and where it should not be permitted to interfere with individual liberty. - This is when an individual’s private conduct can be restricted only where it brings harm to others.

Question 17

What is Devlin’s view on the enforcement of morality?

Answer 17

• The law should intervene in the private lines of citizens because private immoral conduct breaks down the integrity of society, this will allow society to defend itself against immorality.
• He developed an objective test, that of the reasonable man, to help decide where the boundaries are drawn - only where immoral conduct is regarded by this ordinary man should it be prohibited by the law.

Question 18

What is Hart’s view on the enforcement of morality?

Answer 18

• The law should not interfere with private moral or immoral conduct.
• He accepts that enforcement is permitted when one of society’s dominant moralities is being eroded by a true threat to social cohesion.
• This is illustrated through his discussion of bigamy: The law against bigamy protects religious feelings from the offence by an act desecrating the ceremony.