Morality

Legal rules and moral rules

Legal rules are those created at particular moments by the state for the administration of justice, whereas moral rules come into being over time, as a set of customary practices that people choose to subscribe to, often based on religious beliefs. There is often a clear link and an impact of one on the other. English laws have clearly been heavily influenced by the country’s Christian history, and there is a strong link between things that are illegal and are also immoral, such as murder. Both legal and moral rules are concerned with enforcing standards of behaviour, and use similar language in order to do this, such as discussing duties and responsibilities towards one another. There are also consequences imposed on those that break both legal and moral rules, although breaking legal rules often has more serious consequences, especially when dealing with criminal law. 

There are two contrasting opinions on the role that morality plays in the law. For positivists, morality should not play a part in determining what the law should be, whereas natural lawyers would argue that the law should serve a higher purpose, and where the law is not moral, then society is not obliged to follow it. This debate was played out in the Hart v Fuller debate following World War II, with Hart (a positivist) arguing that, because the Nazi’s had followed properly constituted laws, they had done nothing wrong as the law should not be enforcing moral values, and therefore the Nuremberg Trials should not take place. Fuller on the other hand, as a natural lawyer, argued that the Nazi’s should have followed a moral imperative to not commit such atrocities against their fellow man, and as a result the Trials should go ahead. What is clear (and Hart eventually came to agree) is that laws that reflect moral judgements are more accepted by society, more easily enforced, and lead to “fairer” outcomes. A changing moral judgement will often mean that the law has to change to reflect this, as seen in the changing legal and moral attitudes towards race over the 20th century. 

Tort law

Tort law therefore works best when it reflects the moral judgements of society. People are more likely to accept these rules when they reflect the standards that they believe are correct. Therefore, the idea that negligence is founded on a moral principle of safeguarding and caring for each other feels natural and correct to people, and that, if you endanger or harm someone or their property through carelessness that you should correct that through paying compensation. However, the law draws limits on this in relation to secondary victims for psychiatric harm, which sometimes appear unfair, as was seen in the result of Alcock and White following the Hillsborough disaster. The justification for these limitations is also a moral judgement as well as a practical one, in that it is unfair to make the defendant pay for every possible person’s mental health, as they cannot foresee the possibility of all these injuries occurring. This is a moral judgement that the law then enforces. Likewise, within the law on Occupier’s Liability, the law was changed in relation to compensating trespassers, following a change in the morality of caring for people on your land without permission, by the creation of a duty of common humanity. However, as people still believe that it is immoral to trespass, this duty doesn’t go as far as the duty owed to lawful visitors, thereby reflecting a moral judgement within tort law. Likewise, the rules on nuisance and Rylands v Fletcher liability reflect a moral obligation to care for our neighbours and their property as we would our own. As a result, it is possible to say that tort law does reflect moral principles on the whole.

Negligence

• Lord Atkin in Donaghue v Stevenson described the duty of care as one owed to one’s fellow man as a ‘neighbour’ and reworked the parable of the Good Samaritan (moral) 

• BUT  denies many claims for psychiatric and economic loss

Ryland v Fletcher

• What is the purpose of the rule in Rylands v Fletcher? 

• To give a remedy where a person’s property is damaged or destroyed by the escape of non-naturally stored material onto adjoining property. 

• Rule of strict liability 

• Arguable that this reflects a person’s moral responsibility for the consequence of an escape of something brought onto land - to ensure that people behave properly towards those around them

• Liability was made strict - as otherwise the necessary proof for negligence or nuisance could be very difficult - meaning that the person with moral responsibility would be able to evade moral responsibility 

• However it could be argued that the modern interpretation of the rule shows a more legalistic rather than a moral viewpoint (see cases such as: Cambridge Water Co v Eastern Counties Leather and Stannard v Gore) 

Contract law

Contract law is a branch of law that deals with agreements between parties and their enforcement. Contract law has been subject to various debates regarding its relationship with moral rules. Some legal scholars argue that contract law is purely based on economic or utilitarian considerations, while others claim that contract law is founded on moral principles such as promise-keeping, fairness, and good faith.

The relevant legal rules in contract law that reflect moral principles include the concept of an enforceable agreement, the rules on misrepresentation, consumer-orientated rules, and compensation and equitable remedies for breach. The basic moral injunction to keep a promise is reflected in the contractual obligation to honour agreements that satisfy the requirements for enforceable contracts. The rules on misrepresentation recognize the moral injunction to be truthful and not to lie. The Consumer Rights Act recognises a moral obligation to treat all parties equally and protect weaker parties. Compensation and equitable remedies redress the balance when a 'wrong' has been done.

Therefore, it can be argued that many of the rules of the law of contract are founded on moral rules. Contract law recognizes the importance of trust, honesty, and fairness in commercial dealings, which reflects broader moral principles of social cooperation and mutual benefit.

The duty of care to tresspassers

The duty of care to trespassers:

Which act? 

Occupiers’ Liability Act 1984

• Appears to have given trespassers a right to claim compensation when they have been injured while trespassing.

• But there have been court decisions which have restricted when a duty is owed to trespassers and, if a duty is owed, whether the occupier is liable. 

• The idea of allowing a claim by a trespasser demonstrates the changing morality of society: 

• Children - should be able to claim for injuries caused by hidden dangers about which they are not expected to be aware, even if the child is a trespasser.

• Trespassers - even when it is commonplace. The Act sets out when there may be a moral duty - reflected the morality of the time. 

• OLA 1984 has been criticised for allowing too much discretion to the judiciary and too great a possibility of refusing a claim on the grounds of public policy and an attempt to reduce the compensation culture.