Nature of Law - Law and Morality

What is a Law/Rule?

A general norm guiding and mandating conduct

What is Morality?

A system of values and principles of conduct and behaviour

What are some characteristics of legal and moral rules?

origin

date of commencement

enforcement

ease of change

certainty of ocntent

How they are applied

How can the origins of the legal and moral rules be found?

Laws can be found in common law, statutes, EU law and ECHR.

Morals can be found from religious texts as well as from someone’s upbringing, education and learnings of their conscience

How can the date of enforcements of legal and moral rules be found?

Laws have a start date, Acts, precedents are enforced from point of decision

Not really possible for a fixed date to changing societal attitudes over long periods of time, such as pre-marital sex

How are these legal and moral rules enforced?

Laws are enforced by courts following them with appropriate sanctions such as damages or prison.

Morals are more collective, and the overuse of offensive language may lead to people excluding and ostracising them through the media

How easily can these legal and moral rules be changed?

Legal rules are relatively easy to change; Parliament can change them. However, this process is usually slow.

Moral rules change gradually over time over decades, perhaps unoticebly, sometimes law leads morality and vice versa, and over decades, perhaps unoticebly. Sometimes, the law leads morality,

How can the certainty of legal and moral rules content be certified?

Laws can be found in publicly available statutes and law reports

Morals are acquired more informally, through their application and society.

How are legal and moral rules applied?

laws tend to apply to everyone in a situation covered by law.

Morals can range from universal adoption to marginal acceptance, differing views exist amongst differing people, important in pluralism

What are the two main legal theories underpinning the law?

Legal Positivism

Natural Law

What is Legal Positivism?

Laws are valid when created by a mandated legislative power, and do not have to satisfy any moral authority.

What did Jeremy Bentham believe about Legal Positivism?

He was a utilitarian and believed wether a certain group or people dislike a law or find it offensive, it doesn’t discredit its validity

Morality is irrelevent

What did John Austin believe about Legal Positivism

developed the Command Theory, Laws are commands issued by a sovereign power, disobey the law and suffer punishment.

Absolutist

What did HLA Hart believe about Legal Positivism?

Law and morality should be separated, there are two categories of rules, primary and secondary

What is Natural Law Theory?

A rejection of legal positivism, they believe the validity of man-made laws depend on being compatible with a higher moral authority

What did St Thomas Aquinas believe about Natural Law?

Including the Bible and Ten Commandments in his belief as well as Catholic tradition and set out Four kinds of laws.

Eternal law - all things pursuing their god given purpose

Natural law - moral codes that humans abide and incline towards good

positive divine law - Commands of God

Positive Human Law - according with natural law

What were Aquinas’ three ‘natural ends’

Anything has a tendency to go on living, so murder is against natural law as it ends human fufillment

all things have a tendency to mate and bring up young, right to life is paramount

Humans have a rational nature, inclines us to live in orderly society, we should live in harmony.

What did Lon Fuller believe about Natural Law?

rejected traditional religious forms of natural law, laws must achieve social order, and so must satisfy morals

How do morals apply in a pluralist society such as the UK?

freedom of thought and expression are protected rights under the ECHR and everyone has differing views, such as conscientious objectors may believe they will recieve punishment and ostracisation, but it is a moral judgemnt from personal belief. R v Lyons

How do legal and moral rules actually coincide?

Both are concerned with setting standards to dictate behaviour in society

employ similar language, distinguish rights and wrongs,

Both are strengthened when the other is strengthened is they are the same

How have Law and morality influenced eachother in the past?

law relating to rape changed - 1736 ‘ a man cannot rape his own wife’ was overturned in R v R 1991

legalisation of Homosexual relationships and marriage,

R v penguin, Lady Chatterlys Lover later determined to not be obscene

What influence did John Stuart Mill have on Law and Morality?

Developed the Harm Principle, how the state should intervene in persons liberty if they are harming others

Argued morality should not be imposed, people should be free to behave how they choose,

What did Sir James Stephen have to say to oppose this?

Harming one self is just as gross as harming another, opposed Mills liberalism.

prevention of wickedness and immorality is an end of itself

What are some other problems in Mills approach?

What constitutes ‘harm’ does it include drug usage, pornography and sexual practices taken consensually

Does an embryo or foetus count as a member of society?

What is the Hart v Devlin Debate

Lord Devlin published that there must be a common morality amongst everyone, and breaching it, even if in private or no harm to anyone else, is damaging the fabric of society.

Hart opposed this, saying society should not interfere in the private conduct or morality.

Sparked after the Wolfenden Report proposed the law should not interfere in private lives and enforce behaviour.

Law and Morality Evaluation

Balance between protecting larger public morality and private liberty, Shaw v DPP ( magazine advertising prostitutes), R v Gibson ( Human tissue earrings), R v Brown ( BDSM), R v Wilson (Branding)

Determining the autonomy of people in society: St George’s NHS Healthcare Trust V S (woman with pre-eclampsia rejected treatment to save her and her babies’ lives, she was detained under the Mental Health Act and given a C-section without her consent. The court said she has the right to make her own decisions. Gillick v DHSS and R v Pretty (right to die)