Law and Morality

2 Law and Morality

2.1 The Distinction Between Law and Morality

  • Understanding the Difference

    • Distinction between law and morality, aiding clear delineation in legal contexts.

    • Diversity of moral views in a pluralist society emphasizing respect and tolerance for varied perspectives.

    • Importance of the relationship between law and morality for a just society.

    • Legal enforcement of moral values can lead to ethical dilemmas in governance.

2.1.1 What is Law?

  • Definition of Law

    • A rule is something that determines behavior, either voluntary (moral rules) or enforceable (laws).

    • Key term: Rule

    • Defined by Twining and Miers (2014) as 'a general norm mandating or guiding conduct'.

    • Contextual Laws

    • Non-legal rules like the laws of football or chess are context-specific, varying across different cultures.

    • Breaking these rules leads to sanctions within the sport or societal context.

    • Immutable Laws

    • Immutable laws, such as the laws of thermodynamics, which cannot be violated regardless of context.

    • English Law

    • Focus on English law and its distinguishing qualities regarding legal principles.

    • Two primary theories about law:

      • Legal positivism

      • Natural law

Legal Positivism

  • Concept and Definition

    • Valid when created by recognized legislative power, independent of moral or higher authority.

    • Key term: Legal Positivism

    • Theory asserting laws are valid based on recognition without consideration of moral implications.

    • Prominent Classical Legal Positivists

    • Jeremy Bentham and John Austin were foundational figures in the development of legal positivism.

    • Jeremy Bentham

    • A utilitarian law reformer emphasizing law's existence apart from morality.

    • Quote: "The existence of law is one thing, its merit or demerit is another. A law which exists is a law, though we happen to dislike it."

    • John Austin

    • Developed Command Theory of Law with three principles:

      1. Laws are commands from a 'sovereign'.

      2. Commands are enforced by sanctions imposed on noncompliance.

      3. Sovereign is obeyed by the majority, establishing legitimacy.

    • Other Legal Positivists

    • H.L.A. Hart, Joseph Raz, Hans Kelsen contributed significant theories and refinements.

    • Hart's Contributions

    • Distinguished primary rules (legal obligations) and secondary rules (operational aspects of primary rules).

    • Introduced the concept of a rule of recognition, rules of change, and rules of adjudication, serving to clarify how laws operate and are interpreted.

2.1.2 What is Morality?

  • Definition of Morality

    • Defined as 'a system of values and principles of conduct', central to societal functioning.

  • Characteristics of Morality

    • Normative or prescriptive, explicitly delineating acceptable behavior according to cultural contexts.

    • Influence of Religion

    • Religious beliefs significantly shape societal morality, such as:

      • Christianity: Moral codes derived from the Bible emphasizing love and compassion.

      • Islam: Moral codes from the Koran focusing on justice and community ethics.

    • Change in Moral Attitudes

    • Morality is subjective; moral beliefs evolve over time, reflecting societal changes.

    • Related to historical contexts and societal attitudes (e.g., views on abortion, drugs).

    • Emile Durkheim's Analysis of Society

    • Identified factors causing breakdown of common morality:

      • Increasing specialization of labor leading to diverse individual focuses.

      • Growing ethnic diversity contributing to different moral frameworks.

      • Fading religious influence diminishing traditional moral anchors.

2.1.3 Characteristics of Legal and Moral Rules

  • Comparison of Legal and Moral Rules

    • Origins: Legal rules traceable to formal legal sources; moral rules often derived from upbringing, religion, and shared societal beliefs.

    • Date of Commencement: Legal rules have specific start dates; moral rules evolve gradually without clear timestamps.

    • Enforcement: Legal rules enforced by specific legal mechanisms; moral rules depend on societal approval or disapproval, often informal.

    • Ease of Change: Legal rules can be amended by legislative processes; moral rules change gradually, often over decades.

    • Certainty of Content: Legal rules are explicitly defined; moral rules may be ambiguous and require contextual understanding for interpretation.

    • Application: Legal rules apply universally across jurisdiction; moral rules can be subjective and vary significantly by individual and cultural context.

2.2 The Diversity of Moral Views in a Pluralist Society

  • Pluralist Society: Defined as a society where diverse moral philosophies coexist and are actively tolerated.

2.2.1 Pluralism in the UK

  • Characteristics of Pluralism in the UK

    • Multicultural society with considerable variation in moral and ethical values stemming from different ethnic backgrounds.

    • Groups form around shared moral beliefs, fostering community and solidarity around diverse viewpoints.

    • Protection of individual moral views under European Convention on Human Rights (ECHR) promoting moral pluralism.

    • Example: Conscientious Objector

    • Refusal to engage in military conflict based on deeply held moral beliefs, often leading to legal challenges.

    • Case of R v Lyons (2011): Examined legal consequences for insubordination related to moral beliefs and individual rights.

2.2.2 Pluralism in Europe and the ECHR

  • The principle of separating morality from law is critical to ensure personal freedoms and prevent coercion in moral judgments.

  • Examples of Human Rights Cases Influencing Moral Perspectives:

    • Open Door Counselling v Ireland (1992) – examined the violation of freedom of expression related to moral stances.

    • Evans v United Kingdom (2007) – addressed the interplay between individual rights under the ECHR and broader societal morality.

2.3 The Legal Enforcement of Moral Values

  • Ongoing debate about the role of law in enforcing moral principles:

    • Whether law should uphold dominant morality or allow personal moral freedom and how they coexist.

2.3.1 The Influence of John Stuart Mill

  • Mill's Harm Principle: The law should only intervene to prevent harm to others, foundational in liberal legal philosophy.

    • Challenges in defining 'harm', particularly in subjective situations.

    • The concept of victimless crimes raises questions of morality versus legality.

2.3.2 The Hart-Devlin Debate

  • Key Players: H.L.A. Hart versus Lord Patrick Devlin explored differing perspectives on the enforcement of morality through law.

  • Hart's view: Advocated that society should not interfere in personal moral conduct.

  • Devlin's counter-view: Argued that shared societal morality is essential to preserve community integrity and social order.

2.4 The Interaction of Law and Morality

  • Historical legal cases reveal the complex relationship between morality and statutory law:

    • Contract law cases like Pearce v Brooks (1866) examined moral liability in contracts.

    • Otkritie International Investment Management Ltd v Urumov (2013) discussed moral considerations in business ethics.

    • Tort law addressed moral ideas in legal decision-making, for instance, in Donoghue v Stevenson (1932) establishing the duty of care principles.

    • Change regarding duty of care to trespassers illustrated through British Railways Board v Herrington (1972), marking a shift toward more expansive protections.

Summary

  • Two main theory classifications of law are discussed: legal positivism and natural law, essential in legal discourse.

  • The theoretical basis underlying morality is dynamic, continuously evolving alongside societal changes.

  • The intricate relationship between law and morality necessitates that lawyers and judges navigate complex moral scenarios that impact legal interpretations and decisions.