Law and morality - OCR A level Law

Rules

determines the way in which we behave; because we submit voluntarily (moral rules) or because we fear sanctions (legal rules)

Why we obey rules

Hart suggests:

1. carry moral obligation

- rule is reasonable and relevant

- penalty may be imposed if broken

Legal rules

law. Hart says: a set of rues and standards of behaviour that can be enforced in society; enforcement is formal, taking place in courts and leads to sanctions, in the form of punishments or remedies.

Moral rules

a body of rules which governs a groups behaviour based on beliefs and values shared by a society

Characteristics of morals

- heavily influenced by religion

- often centre round sexual issues. ex: homosexuality

- attitudes tend to change over time

Law and moral rules

law will often reflect moral values accepted by a majority of people; unlikely to follow common religious moral code. ex: adultery is not a crime.

Law and religion

England and Wales has moved away from religious beliefs and the law reflects this. ex: Abortion legalised in 1967

Durkheim

No agreement about ethics has been reached. Durkheim felt we lived in a pluralist society: individuals are different so it's impossible to share a moral code

Ethical issues

views can vary on these in different societies while some core morals are universally accepted. ex: any killing is wrong; some thing euthanasia is not

Examples of ethical issues

- euthanasia

- prostitution

- drug use

- vivisection

- hunting

Difference between law and morality

- morality cannot be deliberately changed; law can be altered through legislation

- morality depends on voluntary code of conduct; law is enforceable

- breaches of moral rules not formally acknowledged; breach of law ruled by legal system, often in court

Voluntary code of conduct

morality relies on an individual's sense of shame and guilt while the law can enforce sanctions

Relationship between law and morality

both are normative. ex: they mark the boundaries between acceptable and unacceptable conduct. many of our laws are both moral and legal rules

Salmon's theory of interlocking circles

some things are regulated by law, some by morals some by both.

Complex society

with a complex society, there will never be a complete match between law and moral values

Conduct that is legal but immoral

abortion

Conduct that is illegal but not immoral

revenge killing. ex: killing your son's murderer (R V Kronlid)

Conduct that is illegal and immoral

euthanasia

Changes in law and morality

both morals and law change over time. In the UK, legal changes tend to lag behind moral ones.

Changes in law and morality case

R V R: rape within marriage became a crime

Law changing morals

ex: when use of certain drugs became illegal, sale of drugs forced underground; social attitude towards drug addiction changed.

Scientific development

debates over law and morality have centred on scientific developments such as cloning.

Scientific development example

Dolly the sheep: many countries have banned human cloning; cloning of Dolly the sheep through SCNT triggered worldwide debates as it could, in principle, clone human babies.

Scientific development case

R V Human fertilisation and embryology Act (ex parte) Blood (1997) / the case of Diane Blood: husbad in coma which he could not recover, wife had sample of his sperm for future artificial insemination. court allowed wife to use sperm as it was held that this circumstance had not been foreseen when law on sperm donations was made.

Academic debate theorists

- Durkheim

- Bentham

- Mill

- Hart

- Aquinas

- Devlin

Durkheim

pluralist society - individuals differ in a number of ways so it's impossible for everyone to share the same moral values.

The academic debates

- legal positivism

- natural law

Legal positivism

freedom of the individual in society is more important than a conception o morality which may not be held by all members of society; laws are valid when they are correctly made by recognised legislative power

Legal positivism case

- Gillick (under 16 contraception case)

- R V Wilson (hot butterknife branding case)

Natural law

validity of law depends on it complying with a higher moral authority such as God (Aristotle)

Natural law cases

- R V Brown (masochists case)

- Re A (conjoined twins case)

Bentham

law is necessary to social order and good laws are clearly essential to good government; law in not rooted in a "natural law" but is simply a command expressing the will of the sovereign

Mill

argued that rather than society imposing its own ideas of morality through law, individuals should be free to choose their own conduct so long as they did not harm others - utilitarianism

Victimless crimes

Schur wrote about crimes without victims - he used examples of drug use, homosexuality and abortion, all which were illegal at the time.

Schur

argued that if you have willing participation in an activity, there is no victim to make a complaint and therefore no crime

Hart

said that law should not uphold morals

Hart's 4 reasons

1. punishing offender harms them when they have done no harm to others

2. interferes with right to free choice

3. exercising free choice allows for experimentation and learning

4. suppression of sexual impulses affects development of emotional life, happiness and personality - does harm

Hart example

Gillick V West Norfolk and Wisbech: roman catholic mother did not want doctors do give her daughters contraception w/o her permission. argument was: if needed parental consent, teenage pregnancies may increase; other hand, judges would be encouraging under-age sex if parental consent not needed. results: court in favour that children under 16 who can fully understand implications of proposed treatment can give their own consent (Gillick competency test). mother lost

St Thomas of Aquinas

said that law should reflect morals and there is a higher law (natural law) that comes from God.

Mr Justice Stephens

argued against Mill and said that many crimes which seem to only affect the person who commits the crime do in fact affect other people. ex: possession and use of drugs

Devil's basic principles

1. privacy and right to choose should be respected as far as possible

2. punishment should be used for what creates disgust amongst right thinking people

3. law should be slow to change if it protects morality

Devlin example

Shaw V DPP: D published a "Ladies Directory" which advertised the names and addresses of prostitutes with, in some cases, photos and in others, details of sexual perversions which they were willing to practise. The House of Lords held that an offence of conspiracy to corrupt public morals existed at common law.

Hart-Fuller debate

exchange between Fuller and Hart - Hart argued that morality and law were separate (positivism) while Fuller replied that morality was the source of law's binding power.

Hart-Fuller debate case

they looked at case surrounding laws made by german gov during WW2. Hart argued that laws made during WW2 were valid despite being immoral; Fuller argued that as they were immoral, they were never actually valid. german gov agreed with Fuller and prosecuted informants as war criminals even though what they did was legal during WW2.