Law and morality

( draft one ) Sir John Salmond defines laws as the body of principles recognised and applied by the state in the administration of justice, John Austin defines laws as a command issued from a sovereign power to an inferior and enforced by coercion. 

Phil Harris said that morals are a set of beliefs, values and principles and standards of behaviour. 

Laws come from bills made by parliament as well as judicial decisions, they are enforced through police control and punishments that may be enforced if you break a law for example a prison sentence or a fine, laws can change, this usually happens over the course of a few years since it takes years for a bill to pass however in emergency situations laws can be very quickly changed for example the laws introduced with covid-19. On the other hand morals come from societies or individual's beliefs, norms and values,these can be enforced through things like inclusion and praise if you follow them, however if broken, punishments could include things like exclusion from society. Morals develop over many years and often change with society, for example peoples moral beliefs on smoking. 

Coincidence means that the two ideas are actually overlapping and influencing each other, this means either law influencing morality or morality influencing law. An example of law influencing morality would be after the smoking ban in the health act 2006, peoples views on smoking in a public buildings significantly changed after this ban was put in place, an example of morality influencing laws would be when society decided that unconsensual sex within a marriage was not morally right even though it was legal, this influenced the case of R V R where marital rape become illegal. 

Divergence means that two ideas are not connected, in other words the law does not match up to the societies moral opinions, there are many reasons why this may occur, for instance the law makers morals dont match up with societies morals- this may be due to many of the people high up in parliament as well as judges high up in the supreme court are mainly are elderly white men which is not representative of the multicultural society we live in today, there isn't a consensus on societies morals for instance there is vaying opinions on same sex marriage, and moral change overtime so laws may not update with these changes. 

natural law says that there are some things that are naturally right and wrong and so our man made laws sho]udl mirror the natural order, we work out what is naturally right or wrong through our morality, therefore our laws should be based on our morals and if a law is not in line with with morality it should not be followed, Aristotle thought natural orders are the laws of nature and the universe. The wolfenden report concluded that homosexuality should be legalised due to it being a private act that did not harm others, lord delin believed in natural law and said that society is held together by a common morality and without this common morality, society would disintegrate. It is therefore the laws business to uphold this common morality to maintain order in society, even if that interferes with peoples personal lives, the test for whether something is immoral is whether the ordinary man would regard it with intolerance, indignation or disgust, and he says that the ordinary man is not expected to reason about anything and his judgement may be a matter of feeling. For instance, negligence and murder would be something the ordinary man would regard with intolerance, indignation or disgust whereas legalising homosexuality, l speeding and a smoking ban would go against this. 

Positivism believes that the law has many purposes. It can be used to enforce morality, but does not have to. Therefore if a law is not in line with morality, this is not a problem. Jeremy Bentham said that good laws bring the maximum amount of happiness to the maximum number of people, and John Stuart Mill said good laws are ones that do not interfere with an individual's liberty other than to prevent harm to others. He said that it would be unacceptable for the law to restrict an individual's freedom because other people felt a particular way. Hart said that basing the law on morality was unnecessary because society does not have a common morality and so will not fall apart if the law does not set common moral standards, and is undesirable because this will discourage the development of moral opinions, which will harm progress in society. A few examples of laws that align with harts views include rylands v fletcher, nuisance and the health and safety at work act, and some laws that go against his ideas include possession of drugs, equity, and rv owen.