Law and Morality

Define law

The body of principles recognised and applied by the state in the administration of justice

→ Sir John Salmond

Define rules

General norms mandating and guiding conduct

→ Twining and Miers

Define moral rules

A society's 'code of morality' is a set of beliefs, values, principles and standards of behaviour

→ Harris

Pretty -- euthanasia

Wanted to end her own life due to motor neurone disease

→ Euthanasia still illegal
→ Under ARTICLE 2.1 ECHR, no individual shall be deprived of life

Tony Nicklinson -- euthanasia

Paralysed due to stroke, wished to end life

→ Supreme Court said they'd take action on this ban if Parliament didn't

Assisted Dying Bill

Proposed to help terminally ill adults (

Origins of law vs morality

→ Law comes from common law, Acts, EU Law
→ Morals are embedded in religious/social history, and relate to attitudes/beliefs about key human behaviour -- they're subjective + voluntary

Commencement of law vs morality

→ Laws can be almost immediately introduced
→ Morals develop over time

Enforcement of law vs morality

→ Laws are standards of behaviour prescribed by authorities, so mandatory + enforced by the courts/state sanctions
→ Morals enforced via informal sanctions eg persecution, disapproval, etc.

Application of law vs morality

→ Law applies to everyone in society
→ If laws rigidly reflect morality, wont reflect changing social attitudes

→ Morals are subjective + apply to specific groups; pluralistic society means everyone's moral code is different
→ Influenced by your upbringing, religion

What did Durkheim say about moral values in modern society?

It is impossible to find a single set of moral values in a modern society

→ Everyone has different opinions e.g. on controversial issues like abortion

Main distinctions between moral and legal rules

→ Can resolve legal rule disagreement by referring to Act/precedent, but can argue for/against morals as they arent scientific truths
→ Legal rules can change instantly, moral rules develop gradually (e.g. Sexual Offences Act 1967)
→ Legal rules enforced via sanctions/punishment, moral rules through social/domestic pressure to respect them
→ Moral rules vary, but we all have to obey law

What is a pluralistic society?

→ Diverse society, all groups have independent cultural traditions
→ Everyone tolerates each other's beliefs
→ A challenge for law -- it affects everyone so you cant make everyone happy

What is social consensus theory?

→ If we all shared morality, law would conform to society's shared social consensus
→ Where everyone is in agreement with shared laws/norms, and this allows society to function as a norm

Relationship between legal and moral rules

→ Law must contain a certain amount of morality -- otherwise people wouldnt obey it

John Salmond Intersecting Circles
→ things that are both illegal and immoral, but also one or the other
→ e.g. parking on double yellow lines isnt immoral, but is illegal

Divergence of legal and moral rules

→ Some legal rules have no moral connection
→ Legalising tobacco but not cannabis

Coincidence of legal and moral rules

→ Where law/morals converge and reflect each other
→ Can strengthen law via coincidence with moral rules
→ Justifies their enforcement

Judicial examples of coincidence of legal and moral rules

→ Donoghue v Stevenson -- neighbour principle
→ R v R -- making marital rape illegal
→ High Trees Case -- promissory estoppel

Parliamentary examples of coincidence of legal and moral rules

→ Abortion Act 1967
→ Marriage (Same Sex Couples) Act 2013

Examples of morals influencing laws

→ R v R, High Trees Case, Donoghue v Stevenson
→ Gillick -- medical competency
→ Shaw v DPP -- conspiracy to corrupt public morals

Examples of laws influencing morals

→ Race Relations Act 1965
→ Abortion Act 1967
→ Sexual Offences Act 1967

Natural Law Theory

→ Law must conform to a higher authority to be valid
→ Natural law is the divine law of God (St Thomas Aquinas)
→ Laws must reflect morals, vice versa
→ Fuller -- 'inner morality of law', legal system must conform to procedural requirements to be valid (not retrospective, understandable, etc)

NLT Criticisms

→ No two poeple have same moral code, so laws/morals cant reflect each other to satisfy higher authority (Durkheim)
→ Never works in practice
→ Society changes, as do morals
→ Impossible for everyone to agree on everything

Positivism

→ Reject natural law theory
→ If law is made in manner recognised by state legislative power, it is valid
→ Irrespective of morality

Positivism criticisms

→ Never works in society
→ Doesn't recognise pluralistic society
→ Claims law is made irrespective of morality -- not true

Utilitarianism

→ John Stuart Mill -- people should be free to choose their conduct, as long as they dont harm others
→ This would achieve the greatest happiness for the greatest number
→ Harm principle -- individuals can harm themselves, society only interferes if they harm others
→ Most recognised in todays society

Utilitarianism criticisms

→ Ignores minority, even if they have the most valid opinion
→ Brexit, Indy ref
→ How to define harm?
→ Sir James Stephen -- no distinction between acts harming oneself and harming others

What is the Hart-Devlin debate?

→ Debate from the Wolfenden Committee
→ About whether the law should interfere in private behaviour

Hart's position

→ Society shouldnt interfere with private morals/immoral conduct
→ Should be clear separation of law and morality -- morality is a matter of purely private judgement
→ Cant use the law to enforce moral views -- unnecessary, undesirable, unacceptable
→ When people are n private, everyone consents + no harm being done: law shouldnt interfere

Devlin's position

→ Moral behaviour can be improved via the law
→ Moral behaviour disapproved of by majority should be illegal, even if it doesnt harm others
→ Common morality essential for society

→ BUT, whose morality should be illegal and whose not?