Law and Morality

-Distinction between law and morals -The diversity of moral views in a pluralist society -The relationship between law and morals and its importance -The legal enforcement of moral values

What is morality?

-Morality is defined as ‘a particular system of values and principles of conduct, especially one held by a specified person or society’
-Mary Warnock said: ‘I do not believe there is a neat way of marking off moral issues from others, some people may regard matters of moral right or wrong and other may see it as a matter of taste’

What is law?

A rule is something that determines the way in which we behave, whether this is voluntarily such as moral rules, or beacuse it is enforeable such as laws. 

Some rules are not based on either laws or morality such as the rules of football. However, if these rules are broken it can include laws or morality, for example cheating can be considered immoral.

What are the factors that Emile Durkheim identified that contribute to the breakdown of common morality?

-The increasing specialisation of labour
-the growing ethnicity diversity within society
-the fading influence of religious belief

What does Durkehim say about morality?

-The essential core of society is based on a shared morality, without a shared morality, society disintegrates.
-Law aims to prevent disintegration of society and so will reflect morality.

What are the number of headings that are used to discover the characteristics of legal and moral rule?

-Their origins
-their date of commencement
-their enforcement
-their ease of change
-their certainty of content
-the way the rules are applied.
These characteristics help to identify the rules ad distinguish legal and moral rules.

What are the main legal theories underpinning the law?

Legal positivism and natural law

Legal Positivism

-Legal positivists believe that the laws are valid where they are made by the recognised legislative power in the state, they do not have to satisfy any higher moral authority.

Classic legal positivists- Bentham’s view on legal positivism?

He is a utilitarian law reformer and he believed that there is a distiction between law and its merit or demerts. 'A law whihc exists is a law, though we happen to dislike it'. Morals are therefore irrelevant to law
-Even though you may find a law offensive, this doesn’t affect its validity
Classic legal positivsts:

Classic legal positivists- Austin’s view on legal positivism?

He developed the command theory of law with three main principles:
-Laws are commands issued by the uncommanded commander-the sovereign.
-Such commands are enforced by sanctions.
-A sovereign is one who is obeyed by the majority.

A sovereign is whom society obeys habitually. This can be a single person or collective. For example, Parliament is the sovereign who makes laws and sanctions can be seen in criminal law.

Other legal positivists- Hart

Hart- believes there are two categories of rules, primary and secondary, that combine to form the basis of a workable legal system 

1. Primary rules either impose legal obligations or grant powers. 

2. Secondary rules are concerned with the operation of primary rules. Identified three secondary rules:
1)The rule of recognition- identify primary rules
2)Rules of change- how legal rules are formed, amended or repealed
3)Rules of adjudication- enable courts to settle disputes and interpret the law

Who have Austins view been criticised by? (modern legal positives)

-modern legal positives like HLA Hart insists on the separation of law and morality. His model of law is more sophisticated than that of Austin.
-He argues the two categories of rules are primary and secondary.

Natural law

Natural law is a theory that laws should be based on morals and ethics, and this is what makes them valid.
-Where laws do not satisfy these morals, the law lacks validity.
-Natural lawyers reject legal positivism, they believe that the validity of man-made laws depends on the laws being compatible with a higher,moral authority.

Natural law and Thomas Aquinas

Thomas Aquinas- combined Aristotle and Christian theology. He set out four kinds of law:
1)Eternal law: all things have a natural tendency to pursue their own God given goals because all things are created by God.
2)Natural law: the moral code which human beings are naturally inclined towards. Man made laws must conform to this.
3)Positive divine law: this is the commandments of God (10 Commandments.)
4)Positive human law must be in accordance with natural law.

Aquinas also stated that there are three natural ends or goals from which we can work out moral principles:

1. Anything that exists has a natural tendency to go on exissting. Natural law opposes death therefore human law must follow…

The diversity of moral views in a pluralist society - Pluralism in the UK

-The UK is a multicultural society,this leads to great variety in the moral values of the individuals in society.
-The country in which we live plays a a significant role in shaping our lives, other members of society and other countries shape our views
-The kinds of lives we lead are constrained by the state, which has the right to punish individuals if they go beyond what the state deems to be appropriate behaviour.

Pluralism in the UK- What does R v Lyons show?

-The case of R v Lyons shows that the refusal of a lawful order, even on the grounds of conscientious objection, is a punishable offence in the UK armed forces.

Pluralism in Europe and the ECHR

-The attempt to keep morality and religion out of politics and the law arises from the worry that, for example, religious fundamentalists will impose intolerant laws on all of society.
-In Evans v UK, it involved the refusal of one partner to the destruction of frozen embryos following the ending of their relationship. The ECHR rejected the appeal and stated that the right to respect for a decision in A8 has to be a wide one.

What is the relationship between law and morality?

-Law and morality often overlap, this relationship coincides for much of the time, and at other times, influences the other.
-This can be seen in the coincidence of legal and moral rules, and the influences of law and morality on eachother.
-This is further developed regarding legal enforcement of moral values in different areas.

The coincidence of legal and moral rules

Legal and moral rules share certain characteristics:
-They are both concerned with setting standards, which are essential for governing the behaviour of individuals within society.
-They both dictate the way in which people are expected to behave
-They both employ a similar language, they distinguish between right and wrong and they speak of duties,obligations and responsibilities.
-Legal rules are strengthened when they are the same as moral rules, and their enforcement can be justified more easily and accepted by society.

The influences of law and morality on eachother

-Changing moral values can lead to developments in the law.
-This can be seen in the historical development of the law relating to rape and marriage. In 1736 it was ruled that a man cannot rape his wife but in R v R Owen J stated ‘I find it hard to believe that it ever was common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse.’
-In this way, the law eventually caught up with perceived public morality.