morality

• definitions

  • Law

  • Society's code of morality

• Law:

  • Sir John Salmon

  • "The body of principles recognised & applied by the state in the administration of justice" 

• Society’s code of morality:

  • Phil Harris

  • 'An introduction to Law'

  • a set of beliefs, values, principles & standards of behaviour. 

origins of law + societys code of moraltiy

1. Common law  

   • developed by judges 

   • British Railways Board V Herrington 

2. Legislation 

   • 20th century parliament became increasingly active as a source of law

   • Occupiers' Liability Act 1984 

3. European union 

   • recent time - major source of law-making 

4. Moral rules 

   • difficult to trace back to precise origin 

   • religious teaching 

   • upbringing

   • peer views

   • leanings of their own consciences. 

differences between legal rules + society’s code of morality

• Some people do not see a difference between law & morality

• but to others the 2 concepts are different 

  • e.g. when watching someone drown, you have a moral duty to act but no legal duty 

• differences between legal rules + society’s code of morality

  • legal rules…

•  Applicable to everyone, including those who make the law 

• Strict definitions of law in legislation & precedent 

• Can be enforced, coercive, not voluntary 

  • CRA 2015 

• Breach leads to sanctions e.g. damages 

• Specific in time of implementation 

  • HRA 1988 effective from 1.10.2000 

• differences between legal rules + society’s code of morality

  • society’s code of morality…

• vary from individual to individual, or group to group, especially in pluralist society 

•  no strict definition of what amounts to morality 

• compliance is voluntary 

• any enforcement is informal, breach can lead to social condemnation 

• develop gradually, often over a long period of time 

  • e.g. attitudes to pre-marital sex and homosexuality 

similarities between legal rules + society’s code of morality

• Concerned with setting standards 

• Employ similar language 

• Reinforce each other 

how do law and societys code of morality influence each other?

Morality in front of law 

• Changing moral values can lead to developments in the law 

  • Abortion Act 1967 - statutory reform introduced as a result of public concern over the existing law. 

how do law and societys code of morality influence each other?

Law in front of morality

• Sometimes the reverse occurs, legislation is introduced ahead of, and in order to promote, a change in our morals 

  • 1957- Wolfenden Report recommended: 

    1. Homosexual behaviour between consenting adults in private should no longer be a criminal offence

    2. Age of consent for homosexual behaviour set at 21

    3. Prostitution should be legalised 

  • Ten years were to pass before Sexual Offences Act 1967 was passed  

  • 25 years passed before the age of consent for homosexual behaviour was reduced to 18 in the Criminal Justice and Public Order Act 1994 

  • Took until 2000 till it was further reduced to 16 

Should Law enforce Moral Values? 

two opposing views

• legal liberalism- no

• legal moralism- yes

legal liberalism- no, law shouldn’t enforce moral values

• Law should protect individual freedom

  • John Stuart Mill's harm principle: limited only by the need to prevent harm to others.

• Private, consensual conduct should not be regulated by law

  • Professor Hart - unacceptable as it restricts freedom and undesirable as it halts moral progress.

• Positivism: law is a command from a sovereign (e.g., Parliament), society are in the habit of obeying, enforced by sanctions.

  • John Austin

  • Proffesor Hart

• Criticism - law can be valid even if morally wrong, so individuals must choose whether to obey and accept consequences.

legal moralism- yes, law should enforce moral values

• Natural Law: enforce a shared morality and reflect a higher law, believed to come from God (as stated by St Thomas Aquinas).

• Lord Devlin argued:

  • Private immorality can be punished if it harms society.

  • Law should reflect what the "reasonable man" finds intolerable, disgusting, or morally wrong. A "right-minded person" (e.g. a juror) can judge morality.

  • Law should enforce a minimum standard of morality; societal standards should be higher.

Discuss the extent to which rules in contract law on offer + acceptance are founded on moral rules 

Founded on morality 

1. Justification for decision in Fisher V Bell is based on the traditional view of freedom of contract

   • If the shop window display was an offer, this would remove the shop owner's right as to whether to contract with that customer or not.

   • The customer could enter the shop & accept the offer & create a legally binding contract. 

   • The shop owner may then be liable for selling prohibited goods to a person who is underage which would not be morally right.

2. In Adams V Lindsell, the court recognised that the offeror could protect his interests by insisting that the acceptance must be effectively communicated to them personally by a stated date

   • Courts decided in favour of the claimant, a valid contract was formed at the moment the letter of acceptance was posted 

   • An offer will lapse after a reasonable amount of time, it would be immoral to the offeror to leaving him walting for the other party to accept for an indefinite period the offeree. 

Not founded on morality 

1. Postal Rule may not reflect morality as it imposes a contract on D even though they may be unaware of acceptance from C 

   • This is true as the contract is binding even if the acceptance is never actually delivered. 

Discuss the extent to which rules in contract law on consideration are founded on moral rules 

Founded on morality 

1. Parliament intervened in protecting the rights of 3rd parties to a contract

   • The courts had ried to erode this rule in Jackson V Horizon Holidays 

   • In 1999 Parliament passed the Contract (Rights of third Parties) Act where a contract named them/they were to gain a benefit under the contract 

Not founded on morality 

1. Traditionally a party could not sue if they were not a party to the contract- Tweddle V Atkinson

   • This was immoral as the contract had clearly been devised to provide a benefit to the third party, denying this was unfair.

Discuss the extent to which rules in contract law on intention to create legal relations are founded on moral rules 

Founded on morality

1. The law will not enforce a contract if there is no intention to create legal relations. 

   • Agreements based on social arrangements can be legally binding 

   • These arrangements are usually set out in writing and signed, which again helps the evidence that the agreement is meant to be legally binding.

   • E.g. an agreement to share winnings in a lottery syndicate, Simpkins V Pays 1954 is morally right they had all contribute 

2. Everyone expects to have some legal rights should goods bought turn out to be defective or services ordered not provided. 

   • The law presumes that there is an intention that such contracts will be legally binding. 

   • These are in situations where the law presumes legal relations are required, known as commercial agreements 

     • McGowan v Radio Buxton 

Not founded on morality

• The general principle is that an intention to create legal relations is not presumed in social & domestic agreements. Where the agreement is between family members the courts start by presuming that it was not intended to be legally binding 

  • Balfour V Balfour- This may be immoral as just because they were married did not mean that C had relied on the promise any less than if the agreement had been commercial 

  • But this presumption can be rebutted in social & domestic arrangements if there is a more formal situation

    • Merritt V Merritt- Agreements made are linked to a marriage break up 

Discuss the extent to which rules in contract law on exclusion clauses and consumer rights act 2015 are founded on moral rules 

Founded on morality

1. Courts have tried to protect weaker party, the consumer 

   • Olly v Marlborough Court Hotel 

   • This reflects moral principles as it is fair that the court offer protection to those who may be easily taken advantage of. 

2. 1977 Parliament passed the UCTA to restrict the use of exclusion clauses 

   • s2(1) a person cannot exclude death or personal injury resulting from his negligence & other exclusion clauses are subject to the reasonable test 

   • This act prevents those with stronger bargaining power taking advantage of weaker parties, which would be immoral. 

   • Consumer Rights Act 2015- also prevents businesses from excluding the rights given 

Not founded on morality

1. Consumers are often unaware of their legal rights and therefore the inclusion of an exclusion clause in a contract is often enough to deter them from trying to claim/challenge a contract. 

   • This means moral rules are not reflected as the protection intended for these weaker parties is not actually achieved. 

Discuss the extent to which rules in contract law on terms of a contract are founded on moral rules 

Founded on morality 

1. There are clear guidelines to decide if a statement is a term or a representation, so when the court applies these, they can try to mediate a conflict 

   • For example, did the maker of the statement have specialist skill or knowledge if he did it is more likely to be a term, which reflects the principles of morality. 

2. Supreme Court in Marks & Spencer PLC has clarified the law as to when we can imply a term in a contract 

   • It has endorsed the approach that a term is not applied just because it is reasonable 

   • The term must be so obvious as to go without saying or must be necessary to give business efficacy to the contract 

   • This reflects morality as it ensures that interference only occurs when absolutely necessary. 

Not founded on morality

1. Implied terms 

   • Supply of goods & services law contains number of implied terms 

   • This may not reflect morality as it is imposing terms into a contract that were not agreed or potentially even considered by the parties. 

Discuss the extent to which rules in contract law on vitiating factors, misrepresentation, economic duress, are founded on moral rules 

Founded on morality

1. If the party contracted on the basis of false information, there is no freedom of contract. The party may not have entered the contract if he had known the true facts. 

   • This situation is clearly immoral and so the result of a misrepresentation is that the contract is voidable, is correct. 

2. Economic Duress 

   • Progress Bulk Carriers LTD 2012- Lord Steyn quoted "The aim of our commercial law is to encourage fair dealings between parties. The critical enquiry is not whether the conduct is lawful but whether it is morally or socially acceptable" 

   • This clearly shows the law has been developed with the principles of morality in mind. 

3. Some companies behave immorally 

   • A larger firm threatening a smaller firm would be economic duress, Atlas Express v Kafco 

   • The practical effect of economic duress is that there is a lack of practical choice for the victim 

   • It therefore reflects moral principles to ensure such a contract is not allowed to continue

   Not founded on morality

4. The rules on misrepresentation apply equally to innocent misrepresentation as negligent and fraudulent 

   • This does not reflect the principles of morality as the person making the statement is not at fault but is still held responsible for damages. 

Discuss the extent to which rules in contract law on discharge of a contract are founded on moral rules 

Founded on morality

1. Original rule in Cutter V Powell was very unfair on the claimant if they hadn't fully performed, so exceptions were developed 

   • Divisibility- if a contract can have separate parts, then non-completion of one part will not breach the contract, Ritchie V Atkinson 

   • These reflections allow the law to better reflect moral principles. 

2. A contract becomes frustrated when, due to the fault of neither party, it becomes impossible to fulfill  

   • Taylor V Caldwell- court decided that the contract was frustrated, and both sides were therefore released from their obligations under the contract. 

Not founded on morality

1. The original rule in Cutter V Powell was very unfair on the claimant if he hadn't fully performed the obligations under the contract. If no exceptions apply then this may mean that decisions don't adequately reflect moral principles. 

Discuss the extent to which rules in contract law on remedies are founded on moral rules 

Founded on morality 

1. Damages in contract law puts the victim in the position they would have enjoyed if the contract had been properly completed 

   • This reflects moral principles as it ensures that C doesn't suffer from losses caused by another. 

2. Damages will not be awarded in respect of a loss that it is too remote a consequence of the defendant's breach 

   • Hadley V Baxendale 

   • This is just as it only imposes responsibility for losses where it is fair/moral to do so. 

3. C may also recover for expenses he has had to spend in advance of a contract, this is moral so that C is not left out of pocket 

   • Anglia Television LTD V Reed 

Not founded on morality

1. Remoteness may be seen as immoral because it means claimants may be left without compensation for a loss which was not their fault simply because it is not contemplated at the time of contracting.