Law And Morals Essay Flashcards
Brief intro- define law and morals, explain features of both, explain relevance
- Sir John Salmond ‘the body of principles recognised and applied by the state in the administration of justice’
- created by P (how)
- other sources (precedent)
- DL
- Phil Harris ‘a set of beliefs, values, principles and standards of behaviour’ (held in consensus in society)
- influenced by environment (upbringing, religion)
- considered ‘human nature’
- formal repercussion for law, ostracised for moral break*
- law changes not often but when they do drastic and quick, moral changes often and slow*
Explain how law coincides
Law influences morality
- Health & Safety Act 2006 banned smoking (indoors, public)
- Drug Enforcement Act 1920 criminalised possession of certain drugs (opium & cocaine was normalised before)
Altogether, law influences opinion, law reflects morality
Law and morality coincide
Morality influences law
- new generation pressure groups protesting for Hunting Act 2004 banned hunting foxes
- R v R criminalised marital rape
This shows how change in morality resulted in change in law in order to reflect their morals
Law and morality diverge
Due to being hard to enforce
- adultery (despite being legal grounds for divorce) not illegal - difficult to define & when loyalty should begin
- generally, aren’t legally responsible for omissions unless we have a duty like contractual (Pittwood) gives people right to leave people in need ‘right thing’
Shows some laws don’t align with morality
Law and morality diverge
Due to variety of morals and hard to work out
- strict liability law such as speeding (held responsible despite no mens rea) may be seen as wrong/ dangerous driving which could have catastrophic consequence even if an accident may be immoral
- by law can abort Down syndrome baby up until birth under certain circum (more morally wrong to bring child against parents will with low quality of life or more morally wrong to to discriminate against disabled foetus)
Pluralist society with different ethnicities and religions different moral codes
Law should reflect morality
Natural law theory
- suggests there are natural ‘rights’ and ‘wrongs (reflected in morals) so man-made laws should enforce natural order
- Aristotle believed in laws of nature/universe
- Sir Thomas Aquinas believed our conscience enforces the laws of God
Law should reflect morality
Apply natural law theory
& flaws to theory
- Lord Devlin’s reaction to Wolfenden Report (concluded that homosexuality should be legalised as it doesn’t harm anyone) wasn’t legalised until 10 years later
- Lord Devlin said without common morality society would disintegrate
- said test morality through asking ordinary man if they regarded the thing with ‘intolerance, indignation or disgust’
- main principle is morals are naturally knowledgable but how is ther opposing theories and opposing pressure groups with different moral codes and different morals cross culturally
Law does not need to reflect morality
Positivist theory
- positivist philosophers claim the law has many purposes other than enforcing morality (freedom, order)
- Jeremy Bentham states good law brings the maximum happiness to the maximum amount of people (utility principle)
- Professor Hart states law based on morals is ‘undesirable’
- Hart would support Wolfenden report as it doesn’t restrict freedom just because other people felt a certain way about it
- society won’t fall apart without common morality as there isn’t one (law sets these common standards)
- theory that morality is natural will harm the process of society as laws based on morality won’t be questioned and morals will be time locked and laws outdated
Law does not need to reflect morality
Counter argument
Multipurpose law is more complicated and harder to decide which values to take into account when making law (happiness, protection)
Reduces certainty in the law
Structure
Intro
- define law& morals (features)
- law & morals coincide (law influences morals)
- law & morals coincide (morals influence law)
- law & morals diverge (hard to dictate common held morals)
- law & morals diverge (hard to enforce if not practical)
- law should reflect morality (Natural law theory) Aristotle/Sir Thomas Aquinas/Lord Devlin
- law should not reflect morals (Positivist theory) Jeremy Bentham/Professor Hart
- conclude
Sir John Salmond
Law is ‘the body of principles recognised and applied by the state in the administration of justice’
Phil Harris
Morals are ‘a set of beliefs, values, principles and standards of behaviour’
Law influences morality examples
Health & Safety Act 2006- smoking ban
Drug Enforcement Act 1920- possession of certain drugs
Morality influences law examples
Hunting Act 2004 (fox hunting)
R v R (marital rape)
Law and morals diverge when it’s hard to enforce examples
Adultery
Omissions (other than when got a duty to Act Pittwood)
