law and morality

law definition

Sir John Salmond: "the body of principles recognised and applied by the state in the administration of justice"

morals definition

Phil Harris: "a society's code of morality is a set of beliefs, values, principles and standards of behaviour"

laws and morals overlap

-subject to sanctions if not followed

-some laws reflect moral values e.g. murder

laws and morals conflict

-morals are beliefs about what is right and wrong and laws are rules set by a country for citizens to follow to regulate society

-some moral issues aren't regulated by la

law origins

-common law

-acts of parliament

law commencement

can be introduced almost immediately

law enforcement

-authorities

-they're mandatory

-enforced by courts and state sanctions

-sanctioned by custodial sentences, fines, discharge, community order

law application

-applies to all in society (rule of law)

-if laws rigidly reflect morality, this wouldn't reflect changing social attitudes

morality origins

-religious and social history

-attitudes and beliefs we hold about key human behaviour and activities

-subjective and voluntary

morality commencement

develops over time

morality enforcement

informal sanctions eg. dismissal from family/work, relationship breakdown

morality application

-subjective: applies to different groups

-influenced by upbringing, religion and social circles

-adheres to a pluralistic society

differences between law and morality

-disagreements of legal rule's content can be resolved by by referring back to precendent/Act

-moral rules aren't "scientific truths" and can be argued for an against

--legal rules can be changed instantly

--moral rules evolve gradually

---legal rules are enforced through sanctions

---moral rules enforced through social and domestic pressure

examples where law hasn't changed despite public moral views

-recent guardian poll showed 91% people agree with euthanasia

R(Pretty) V DPP

-R(Pretty) V DPP: R, terminally ill, wanted assurance that her husband wouldn't be be prosecuted for helping her end her life. -> HL refused, ban on assisted dying lawful, no right to die.

R(Nicklinson) V Ministry of Defence

-R(Nicklson) V Ministry of Justice: R, severly paralysed, challenged assisted suicide ban and sought either defence of necessity or a declaration of incompatibility. -> SC refused to change law but held Parliament should decide whether ban should be reformed.

pluralistic society definition

diverse society, where minority groups maintain their independent cultural traditions and all members tolerate eachother's beliefs even when they don't match their own

social consensus theory

if we all had the same shared morality then the law would conform to the social consensus theory.

-everyone is in agreement, everyone agrees with shared laws and norms

-shared norms allow society to function as a norm

Durkheim: social consensus theory

described that its impossible to find two people with the exact same moral cod. therefore its idealistic and can't work in day-to-day society

Sir John Salmond's theory of two intersecting circles

the areas outside represent areas of divergence and the inside area represents the coincidence of law and morality

divergence definition

where some legal rules appear to have no moral connection eg. tobacco is legal but cannabis isn't

coincidence definition

where laws and morals coincide or coverge together they reflect one another eg. donoghue v stevenson, lord atkin created the neighbour principle. RVR, marital rape became illegal

law influencing morals examples: Race Relations Act 1965

-banned racial discrimination and promotion of hatred became an offence

-raised social awareness, encouraging people to help eachother

law influencing morals examples: Abortion Act 1967

-legalised abortion

-raised awareness on bodily autonomy and a step towards women's rights

law influencing morals examples: Sexual Offences Act 1967

-decriminalised private homosexual acts

-changed sexuality views, promoting acceptance

-lead to Marriage (same sex couples) Act 2013

morals influencing laws examples: Donoghue V Stevenson 1932

-moral duty of care that manufactures owe to consumers

morals influencing laws examples: Shaw V DPP

-earned money from prostitutes by publishing a directory that they paid to be in to promote their services even though there was no law against doing this

-court has the power to safeguard public morals despite there being no legislation

morals influencing laws examples: RVR

-changed attitudes towards marital rape, recognising women's autonomy and right to choose within marriage

natural law theory

-validity of man-made laws depends upon the law's compatibility with a higher moral authority

-believes that law and morals are inseperable

-Aristotle described theory as "law of nature"

-Aquinas argued natural law can be discovered through reason and revelation

-in modern times Fuller argued that law must meet certain procedural requirements to be valid

natural law theory evaluation

-doesn't work in a pluralistic society, can't agree on everything

-society is always changing so are morals

legal positivists

-reject natural law

-law is a legal rule, if made in manner recognised by legislative power, is valid

-irrespective if they are morally wrong and there's no need to satisfy a higher power: law is autonomous

-Hart's book "concept of law" subscribes to this view being critical of Austin's views as simplistic

-Hart feels that validity of the law isn't dependent upon its moral acceptability

legal positivists evaluation

-never works in society: views humans as too passive (humans allow other people to be in control)

-made irrespective of morality

-doesn't recognise a pluralistic society

utilitarianism

-John Stuart Mill: individual should be free to choose own conduct as long as they don't harm others in doing so. this would achieve "the greatest happiness for the greatest number"

-harm principle: individual can harm himself, society can only interfere if it harms others

-Sir James Stephen: "there's no distinction between acts that harm others and acts that harm oneself" "the end to wickedness is justified and the law has a duty to ban behaviour condemned by society at large."

utilitarianism evaluation

-most recognised in today's society

-can be seen within creation of laws themselves eg. if enough votes moves to next parliamentary stage, favours democracy

-ignores when minority have the most valid opinions

-how do we define harm? R V Brown

wolfenden report

-UK government report examining laws on homosexuality & prostitution

-said private, consensual homosexual acts between adults should no longer be a criminal offence saying law shouldn't interfere in private moral behaviour.

-prostitution should be regulated rather than criminalised

-lead to Sexual Offences Act 1967 which partially criminalised homosexuality for men 21+

hart-delvin debate: hart's side

-law should protect individuals from harm, not enforce moral views, supporting the idea that private, consensual acts should not be criminalised. separation of law and morality.

-R V Wilson: court held that consensual bodily harm (bonding between spouses) in private was lawful, supporting hart's views on bodily autonomy

hart-delvin debate: delvin's side

-society had a shared moral code and the law is justified in enforcing it to preserve social cohesion - even in private behaviour. public morality binds society and law should protect that morality even if it means restricting individual freedoms

-R V Brown: HL ruled that consent was not a defence to serious harm in sadomasochistic activities, reflecting delvin's view that the law may enforce moral standards