Law and Morality

Question 1

What was the Twining and Myers definition of a rule?

Answer 1

A rule is a ‘general norm mandating or guiding conduct’

Question 2

What is legal positivism?

Answer 2

Law is valid where they are made by the recognised legislative power

Question 3

What was Jeremy Bentham’s view?

Answer 3

Philosophy of the law should be concerned with what the law is. People might dislike a law but that doesn’t change its validity

Question 4

What was John Austin’s view?

Answer 4

Laws are commands issued by the sovereign; these commands are enforced by sanctions

Question 5

What did HLA Hart believe in regard to law and reality?

Answer 5

Believes in the separation of laws and morality, and primary and secondary rules

Question 6

What are primary and secondary rules?

Answer 6

Primary rules are rules imposing a legal obligation.
Secondary rules and rules concerned with the operation of primary rules

Question 7

What was Raz’s belief on laws and morality?

Answer 7

Law is autonomous and doesn’t require reference to morality

Question 8

What was Hans Kelsen’s belief on laws and morality?

Answer 8

Morality is not a part of the law

Question 9

What is natural law?

Answer 9

Natural law rejects legal positivism and supports that the validity of law depends on moral authority

Question 10

What was Lon Fuller’s view of law?

Answer 10

Serves the purpose to achieve social order through subjecting people’s conduct to the guidance of general rules

Question 11

What is morality?

Answer 11

Personal/collective to society as a whole. It differentiates between acceptable and unacceptable behaviour

Question 12

What was Mary Warnock’s view of morality?

Answer 12

It is not fixed and can change as people and society vary

Question 13

How are the lines between legal and moral rules blurred?

Answer 13

Many acts are immoral but not illegal in the UK, like adultery. However, some moral rules also influence legal rules, like in R v R

Question 14

What were the views of H.L.A. Hart and Lord Devlin in the Hart-Devlin debate?

Answer 14

Hart= Law shouldn’t intrude on peoples private lies.
Devlin= “without shared ideas on politics, morals and ethics, no society can exist”

Question 15

What are Hart’s three criteria for when law should intervene with private lives?

Answer 15

• Defence of public order
• Actual harm to the individual
• Protecting the vulnerable

Question 16

How did Devlin decide where barriers should be placed?

Answer 16

The reasonable person test

Question 17

What are the issues reflecting legal enforcement of moral values in contract?

Answer 17

• Law on equity was founded on principles of conscience and maxims like: ‘equity will not allow a statute to be used as a cloak for fraud’.
• Certain contracts may be deemed void due to immorality

Question 18

What was held in Otkrite International Investment Management Ltd. v Urumov?

Answer 18

‘Courts will not lend their aid to a man who founds his actions upon an immoral or illegal act’