law and morality

Rule

Defined by twinning and miners as a general norm mandating or guiding conduct

Legal positivism

The theory of law that is based on the idea that law are valid where they are made by the recognised legislative power in the state and do not have to satisfy any higher authority

Natural law

A moral theory of jurisprudence which many trains that law should be based on morality and ethics.

Legal positivists

Bentham

Austin

Hart

Raz

Kelsey

Bentham

Utilitarian + law reformer

Believed philosophy of law should be based purely with what law is

Morality is irrelevant to law

Just because people disagree doesn’t discount it as law

Austin

Developed command theory of law:

1. Laws are commands issued by the uncommanded commander

2. Such commands are enforced by sanctions

3. A sovereign is one who is obeyed by the majority

Hart

Criticises Austin’s simplistic view

Insists on separation of law and morality

2 categories of laws:

1. Primary: impose legal obligations or grant powers

2. Secondary:controls the operation of primary rules there are 3 secondary rules. (1) rule of recognition-criteria for identifying primary rules (2) rules of change- identify how legal rules are formed, amended and appealed (3) rules of adjudication-enables court to settle disputes and interpret the law

Raz

The identity and existence of the legal system may be tested by

1. Efficacy

2. Institutional character

3. Sources

4. Law is autonomous can identify its content without recourse to morality

Kelsey

Morality is no part of law it is neither good nor bad

Natural law philosophers

Thomas Aquinas

Lon fuller

Aquinas

Combined the philosophy of Aristotle with Christian theology including the bible and Ten Commandments and catholic church tradition.

Set out 4 kinds of law

1. Eternal law-all things have a good given tendency to pursue their own God given goals because they are created by God human beings can have some understanding of eternal law example law of gravity

2. Natural law - the moral code which human beings are naturally inclined towards we are naturally inclined towards good man-made law must confined this as it comes from a higher authority

3. Positive divine law - commands of God 10 Commandments

4. Positive human law -must be an accordance of natural law

3 natural ends which can work out moral principles

1. Anything that exists has a tendency to continue existing natural law opposes death to murder is wrong

2. All animals have natural tendency to make right to life is paramount protection of kids

3. Humans have a rational nature which inclines us to know the truth about God natural law commands we should worship God and live in harmony with others

Lon fuller

Reject legal positivism and traditional and religious forms of natural law

Argued that law serves the purpose to achieve social order through subjecting people’s conduct to the guidance of general rules by which they themselves orient their behaviour

If law is to be achieved for this purpose, it must satisfy the eight principles which make up an inner morality of law

1. In existence

2. Promulgated (published)

3. Perspective

4. Clear and concise

5. Not contradictory in nature

6. Doesn’t require the impossible

7. Constant

8. Applied and administered as stated

What is morality

Morality is prescriptive or normative it specifies or ought to be done and delineates acceptable and unacceptable behaviour. Moral attitude change over time. This can be seen in an attitude to issues like abortion homosexuality drugs and drink-driving in an increasingly diverse and pluralistic society. There are variety of moral views Legal and moral rules though distinctive share number of characteristics.

The six characteristics which help identify legal and moral rules

1. Origins

2. Date of enforcement

3. Ease of change

4. Certainty of content

5. The ways the rules are applied

Origins

Legal rules- can be traced back to a source like common law or statute

Moral rules – normally Bible or crime or upbringing education pay of views et cetera morality based on this combination

Date of commencement

Legal rules – generally have a start date

Moral rules dash not possible to attach a date part of the wider social change attitude involved overtime

Enforcement

Legal rules – can be enforced by the courts following a designated procedure with appropriate sanctions

Moral rules – usually enforce through public disapproval

Ease of change

Legal rules – relatively easy to change in theory parliament could pass new laws in practice doesn’t courts can also out rules

Moral rules – tend to change gradually

Certainty of content

Legal rules – can normally find precise content through published statute law reports et cetera

Moral rules – content may be clear but knowledge acquired informally through exposure

Application

Legal roles – generally applied to everyone in a situation covered by the law only difference is the ability of every individual to access the law

Moral rules – range an application from universal to marginal acceptance different people take different views

Pluralist society

A diverse society where the people in it believe all kinds of different things and tolerate each other’s beliefs even when they don’t match their own

The diversity of moral views in a pluralistic society

There is likely to be a variety of moral abuse and purely society. An individual views are protected under the ECHR asses his right to express his views and assemble with others to express the collective views. The kind of lies we can lead is constrained by the state which has the right punished individuals if they go beyond what the state seems to be appropriate one example is that of a conscientious objector who When the countries at war refuses to fight.

Conscientious objection

When did member of the army finds they can’t carry out their work with good conscience when there’s a strong enough claim to remove themselves from the work then it is conscientious objection

R v Lyon’s 2011

Join Navy at 18 became leading medical assistant in submarine told he would be deployed to Afghanistan applied for discharge. On basis he objected to the U.K.’s role in Afghanistan. His application on grounds of conscientious objection was refused before his appeal was decided he was ordered to take a pre- Deployment weapons training course on refusing to submit this he was convicted of insubordination argued article 9ECHR freedom of thought and conscience and religion protected him from active service from the moment he told his commanding officer his objections until his appeal on grounds of conscientious objection was finally determinedcall Marshall appeal court ruled that moral objections to the UK’s involvement in Afghanistan do not constitute a defence to an insubordination charge Apple was not entitled to disobey a lawful command on the grounds of conscientious objection

Open door counselling and Dublin woman well centre v Ireland 1992

In Ireland a ration was illegal. European court of human rights found that the Ireland supreme Court injunction restraining counselling agencies from providing pregnant women with information concerning abortion facilities abroad violated ECHR article Ten right a freedom of expression

Evan’s v UK 2007

ECHR stated that the right to respect for the decision to become a parent in the genetic sense the margin of appreciation to be afforded to the respondent state under article 8 has to be a wide one case involved the refusal of one partner to the destruction of frozen embryos following the ending of the parents relationship.

The relationship between law and morality and its importance

Legal and moral rules are both concerned with the setting standards and dictate the way in which people are expected to behave sometimes legal rules possess no obvious moral content parking on a double yellow line in empty town centre at 4 am does not seem to infringe any moral coat other than it is breaking the law most the think is a moral to impose a parking fine in that situation Amelia council money making exerciseThere are many moral rules that are not part of the law. Most people would agree that adultery is a moral and might be the basis of a divorce, but it is not illegal in the UK.

Changing moral values lead to developments in the law e.g marital rape law

1736 ruled that a man cannot rape his wife

R v r 1991 found that marital rape was a crime eventually law caught up with percieved public morality

The legal enforcement of moral values

The debates as to wether

1. The law as a guardian of public morals should intervene to ensure the continuation of the dominant morality within the state

2. Individuals should be left for free to decide that morality

John Stuart mill

Wrote a book called on liberty in the 19 century about the nature and limits of power which can be legitimately exercised by society over the individual mill argued the society should not impose morality on the individuals. Individual should be free to choose how they behave provided no harm is caused other members of society.

Mill’s harm principle

“ Only purpose for which power can be rightly exercised over any member of a civilised community against as well to prevent harmed others his own good either physical or moral is not a sufficient warrant over himself his own body and mind the individual is sovereign”

So someone can harm themselves unless it harms others or they are a child or have severe mental disabilities

So James Stevenson opposed him arguing that there is no distinction between acts that harm others and oneself

Problems with Mill’s approach

1. Not clear what constitutes harm does pornography or drugs count et cetera?

2. Not clear whether an embryo or fetus photo than definition of other members of society

3. Following his logic crimes without a victim shouldn’t be crimes. Edwin Schur and Hugo Belau In book victimless crimes two sides a controversy argues that some laws produce secondary crime and create new crimes. In book victimless crimes two sides a controversy argues that some laws produce secondary crime and create new criminals victims crimes the only harm the individual should be decriminlaised

The Hart-Devlin debate

In 1957 the Wolfenden report proposed that there must remain a realm of private morality and immorality which is in brief and crude terms, not the law’s business and recommended that homosexual acts between Two consenting adults should no longer be a should no longer be a criminal offence.

Hart-decline To be was a prominent legal and philosophical discussion in the mid 20th century about their relationship between law and morality particularly regarding the enforcement of morals through law the debate was sparked by the Wolfenden Reports recommendation to decriminalise homosexual acts between consenting adults in private a proposal but deeply divide a public opinion

Devlin’s arguement

Declining a judge or hit the society has a right to enforce it shared morality through law even in the absence of direct time to others he believed that society has a right to protect is moral fabric and that the law should reflection uphold the prevailing moral standards of the community definite argued that the law should intervene when behaviour is being morally offensive by the majority even if it doesn’t cause direct harm

Hart’s arguement

Heart illegal philosopher disagreed with Devlin arguing the law should primarily be concerned with preventing harm to others and not with enforcing morality. He believed the individual should have the freedom to make their own moral choices even if those choices are unpopular or considered immoral by others heart emphasise the importance of individual autonomy and argued that the law should not be used to suppress personal freedom and individual choices.

Key differences in the Hart-Devlin debate

Purpose of law-heart believed the laws primary purpose is to prevent harm while delving believed the law should also uphold social morality

Enforcement of morality-Heart argued against using the law to enforce morality while Devlin supported it

Individualised autonomy- hart emphasised individual freedom and autonomy while Devlin prioritised the preservation of societal morality

Relationship between law and morality- hart saw law and morality as distinct entities while devlin viewed them as intertwined

Human rights

Human rights are based on the principle of respect for the individual. Their fundamental assumption is that each person is a moral and rational being. He deserves to be treated with dignity. The ECHR contains 14 articles setting out different individual rights.

What are absolute rights

For example, article 5 and article 2 it is where a state cannot justify interfering with them

What are qualified rights

For example articles 810 and 11 if the state can justify a limitation of these rights which is in accordance of law a legitimate aim there will be no breach of the ECHR

Mengesha v commissioner of police metropolis 2013