Law and morality Q9

morality definition

a particular system of values and principles of conduct, especially one held by a specified person or society - can be collective and personal morality

legal positivism definition

theory of law that is based on the idea that laws are valid where they are made by legislative power

natural law definition

a moral theory of jurisprudence, law should be based on morality and ethics

pluralist society definition

a diverse society, where people in it believe all kinds of different things + tollerate each other’s beliefs even if they do not match their own.

5 legal positivists and their theories

• Jeremy Bentham - wrote about what the law is + comments on its merits or otherwise - philosophy of law should be concerned only with law

• John Austin - developed the command the theory of law with its 3 main principles; recognised a sovereign as one whom obeys society

• Jo Raz - argues that the identity + existence of a legal system may be tested by reference to 3 elements, law is autonomous

• HLA Hart - believed in separation of law and morality

• Hans Kelsen - argued morality is no part of law

2 legal philosophers arguing about natural law and their theories

Thomas Aquinas - combined the philosophy of Aristotle with Christian Theology inc. the Bible and 10 commandments;

Lon Fuller - argued law serves the purpose ‘to achieve social order through subjecting people’s conduct to the guidance of general rules by which they may themselves orient their behaviour’

characteristics of legal and moral rules (6)

• Origins : LR - ECHR for UK, statutes; MR - Bible, Koran , religious books

• Date of commencement - LR - Acts of Parliament; decisions come into force at a specific time; MR - less straightforward;

• Enforcement - LR - following a precise procedure; MR - sanction may take place if are not followed

• Ease of change - LR - Parliament is often slow to respond to change; MR - changing gradually over centuries

• Certainty of content - LR - possible to discover the precise content, throug statutes, law reports; MR - can be clear, but can be acquired only informally

• Applications of rules - LR - apply to everyone; MR - different views are taken by different individuals

what is Hart - Devlin debate about ?

Hart suggests that law should be separate from morals (R V Wilson), Devlin says it is law’s responsibility to uphold morals

summary of pluralism in the UK and Europe

UK has a multicultural society, with individuals having different religious beliefs - keeping morality and religions out of politics and the law arises from the worry that eg religious fundamentalists will impose intolerant + coercive laws on all of society