Law and Morality

What does St Thomas Aquinas Natural Law argue that three types of perfect law from God was?

1.Eternal Law

2.Divine Law

3.Natural Law

What is Eternal Law?

Law of God which is incomprehensible to humans and sets the purpose of the universe

What is Divine Law?

Law that is revealed to humanity through revelation (notably the bible)

What is Natural Law?

Law that can be established by human reason (a gift from god)

What are the five primary precepts (he regarded as the view of God?

1. Preserve Innocent Life

2. Reproduce

3. Educate

4. Live in an ordered society

5. Worship God

How is the case that reflects Divine Law?

Donoghue V Stevenson

What did Lord Atkin rely on to from the basis of negligence(neighbourhood principle)?

Parable of the Good Samaritan

What case shows Natural Law?

Re: A Conjoined Twins

How does Re: A Conjoined Twins reflect natural law?

The Court of Appeal ruled an operation, that would definitely kill one, was permissible in these circumstances- as it preserved the life of another

What is the problem with pluralism under the case Re: A V Conjoined twins?

Hard to justify all law on the basis of natural law as the Bishop of Westminster was allowed to intervene

AND

Not all believe in God making this theory hard to justify

How does the Bishop of Westminster intervening show the problem with natural law?

Not always possible to reach a consensus on what is moral-using natural law so the law cannot be always moral as we cannot understand eternal law

What did Fuller aim to remove from natural law?

God

What did Fuller under natural law argue that the law itself had?

“Inner morality”-Law itself is by nature moral

What are the eight principles that Fuller set out that the law should be?

1. to be established

2. to be made public

3. to be prospective

4. to be clear and understandable

5. to be free of contradictions

6. to be possible to comply with

7. to have consistent

8. to be applied in practice as its written

How does the Law-Making Process reflect Fullers principles?

Often to ensure laws are known about, commencement is a lot later than Royal Assent to ensure publicity and the possibility of compliance

What do these principles not stop being made?

Immoral law; only makes them less likely

What is an example of immoral laws?

Covid 19 lockdown laws were not clear and immediate but still legitimate law

What is an example of where the common law is arguably retrospective?

Lister V Halsey Hall where the HOL held that vicarious liability could apply intentionally- this was not the case prior to lister

What did Bentham argue that should be a sepertae concept?

What law is and what it should (ought) to be

What law is a question of?

expository jurisprudence

What law should be is a question of?

censorial jurisprudence

In this context why is expository jurisprudence meaningless to ask whether the law is moral?

because what law “is” is a different question to what law “ought to be”

Where is Benthams argument shown in Law?

Pretty V DPP

What did Lord Bingham state in Pretty V DPP that the task of the committee is not?

“to weigh in or evaluate or reflect those beliefs”

What did Austin argue under the command theory that law is because?

1. A commander sovereign commands the uncommanded (Parloiament)

2. Fear of punishment (punishment/penalties)

3. The soverign is habitually obeyed by the majority

What is an example of where John Austins command theory is shown?

Compensation Act 2006 overrules the House of Lords decision in Barker V Corcus

What was not considered in the Compensation Act 2006 overruling the House of Lords decision in Barker V Corcus?

The morality of holding some responsible

What is a case where it is shown not to be possible to separate commands from its moral foundation?

Royal College of Nursing V DHSS

How is it shown in Royal College of Nursing V DHSS (RCN V DHSS) that?

Take into account the complexities of understanding the soverign commands and what the moral reason was

What are the two types of the rule in the legal systen argued by Hart?

1.Primary Rules (the actual laws(Tort,Crime,Human Rights)

2.Secondary Rules (the rules required to make,modify, and interpret the primary):

What are the secondary rules that laws have to undergo?

The Rule of Recognition: the rules that determine what processes primary laws have to go through to be law

Rules of Change: Rules that explore how primary rules are created, modified and repealed- allowing the legal system to change over time

Rules of adjudication: Rules outlining how primary and secondary rules have been followed

Where is Harts legal positivism shown in the law?

The parliamentary Law-Making Process- there are clear guidlines as to what constitutes a legitmate law; this shows Harts rule of recognition

How is Harts principles seen as being too simplistic in modern legal systems?

The ECtHRs creation of the margin of appreciation is a direct moral concept which changes given a countries unique circumstances

What is the Wolfenden Report?

The report supported the decriminalises of homosexual acts and prostitution; this was justified on the basis of the law should not intervene with a persons private morality