Law and Morality essay

Intro:

Definitions:

Law - Sir John Salmond “a body of principles recognised and applied by the state in the administration of justice” - compulsory rules that apply to all members of society - formal

Morality - Phillip Harris “a set of beliefs, values, principles and standards of behaviour” - optional rules that vary between different people and cultures - informal

P1:

• law and morality intrinsically linked - moral influence on law

• E.g legal stance on marital rape changed in 1991 due to a growing shift in moral values

• Sexual Offences Act 1967 - legalised homosexuality - influential on educating the public on what is morally acceptable

• Statute and common law often lags behind morality + it is difficult to create laws enforcing one morality in a pluralist society

P3:

Diversity of law:

Natural law - necessary connection between law and morality

Positivism - all laws are valid, regardless of morals

Wolfenden Report - Devlin and Hart debate

Wolfenden report - debate

Devlin - natural law stance - law should interfere and enforce morality when a reasonable man would find an act intolerable or disgusting

Hart - positivist view - focused on the rights of a person to do as they wish - separation of law and morality

Natural law in law:

R v Brown - consent cannot be a defence to GBH or ABH

Possible homophobia?

Social paternalism - by taking measures to create a safe society, the law enforces moral rules onto people

Positivist law in law:

R v Wilson 1997 - consent because privacy of marriage

Law does not enforce morality