NEGLIGENCE- law & morality essay

Question 1

DEFINE-def for law?

Answer 1

set of rules and principles created and enforced by the state

Question 2

DEFINE-what is law also

Answer 2

a form of social control to establish and maintain social order

Question 3

DEFINE-what are the two theories to consider in law?

Answer 3

legal positivism & natural law

Question 4

DEFINE-what is legal positivism done by?

Answer 4

legal positivits

Question 5

DEFINE-what do legal positivits believe with legal positivism?

Answer 5

believe law is a legal rule which if made correctly is valid and irrespective of its content

Question 6

DEFINE-what does positivism emphasise on?

Answer 6

seperation of law and morality also enhancing on the fact that law is man made, and made regardless of the morality of its content which society follows

Question 7

DEFINE- what would this be opposed to?

Answer 7

This would be opposed by natural law, however, positivists remain that we should follow rules (law) until changed itself.

Question 8

DEFINE-who is a positivisit and what did he suggest?

Answer 8

Jeremy Bentham (positivist) suggested that law is created for the greater good

Question 9

DEFINE-what were views by his pupil?

Answer 9

Views by his pupil John Austin stated that law is for obeying and is backed by threat of punishment

Question 10

DEFINE-what was han kelsens version of legal pos?

Answer 10

Hans Kelsens version of legal positivism was on the basis that law needs no moral validation to be legitimate

Question 11

DEFINE-what was the most sophisticated version of legal pos done by?

Answer 11

The most sophisticated version came from H.L.A Hart who argued that there were 2 categories of rules (primary and secondary).

Question 12

DEFINE- what do legal pos in all do?

Answer 12

In all, legal positivists do not accept or require for law to be based on morality showing the separation of the two.

Question 13

DEFINE- what is natural law?

Answer 13

Natural law on the other hand believe that law and morality are connected. Therefore if law is not moral it will not be classed as law hence having no authority.

Question 14

DEFINE- what did thomas aquinas say with natural law?

Answer 14

Thomas Aquinas called law without moral content a “perversion of law”. “Unjust law is not true law” He also refers to law based on the 10 commandments. For example in case Donogue v Stevenson “ love thy neighbour” when creating the “neighbour principle” in negligence

Question 15

DEFINE-what did thomas more say?

Answer 15

There is also a higher law (God’s law) which Thomas More refered to and stated.

Question 16

DEFINE-what is morality?

Answer 16

Morality is “a religious code of conduct”. Matters that may involve moral issues; alcohol, suicide, discrimination, prostitution and so forth.

Question 17

RELS BTW LAW AND MORAL- what has moral been incorprated into ?

Answer 17

Morality has been incorporated into law by statute or common law in many ways such as the moral code contained within the ten commandments that many abide by.

Question 18

RELS BTW LAW AND MORAL- what is the example of the incorpration?

Answer 18

For example “thou shall not kill”- common law crime of murder or “thou shall not steal” - Theft under the Theft Act 1968. On the other hand some law has no moral code behind it such as parking restrictions in category of strict liab

Question 19

RELS BTW LAW AND MORAL- what do some moral rules dont have?

Answer 19

some moral rules however have no legal enforcement such as adultery, not illegal but yet would have some level of moral critiscm. Pornography also seen as immoral yet no legal enforcement unless your a minor.

Question 20

RELS BTW LAW AND MORAL- what is sometimes law created for

Answer 20

Sometimes law is created for moral issues or making sure existing law is applied to cases involving moral issues.

Question 21

RELS BTW LAW AND MORAL-what are the cases involving moral issues?

Answer 21

R v Gibson and another
Hales statement of 1736
R v Clarke
R v R

Question 22

RELS BTW LAW AND MORAL-what was said in r v gibson and another?

Answer 22

the defendant exhibited at and exhibition in commercial art gallery where on a models head, earrings were made out of freeze dried human foetuses (hence being entitled “humans earrings”). Due to the general publics visitation of this exhibition, the defendant was convicted o

Question 23

RELS BTW LAW AND MORAL-what also developed law?

Answer 23

Change in moral values can also lead to developments in law.

Question 24

RELS BTW LAW AND MORAL-what is example of this developed law?

Answer 24

For example Hales statement of 1736 suggested that man cannot be guilty of rape if married and that the wife automatically ‘consents’. However by the 20th century this statement was controversial and outdated with modern society. Therefore judges who did not agree with this immorality would find ways for justice. For example R v Clarke.

Question 25

RELS BTW LAW AND MORAL-what is euthanasia?

Answer 25

Euthanasia is where a terminally ill person who suffers great pain asks for another to assist him to die in a pain free manner e.g. lethal injection.

Question 26

RELS BTW LAW AND MORAL-what are the moral arguments for and against euth?

Answer 26

There are moral arguments for and against legalizing euthanasia which had resurfaced with the case of Dianne Pretty. Overtime DPP issued guidelines on when cases with assisted suicide should or should not be done.

Question 27

SHOULD LAW ENFORCE MORALITY- what is still questionable?

Answer 27

It is still questionable on whether law should enforce morality and many philosophers have argued what role of criminal law is in respect of enforcing moral standards.

Question 28

SHOULD LAW ENFORCE MORALITY- what is the debate you should consider?

Answer 28

HART -DEVLIN DEBATE

Question 29

SHOULD LAW ENFORCE MORALITY- what did lord devlin argue?

Answer 29

argued that is justified by use of moral ity as it is the cement in society -society should tolerate what the reasonable man would and that if immoral then society should ban activity

Question 30

SHOULD LAW ENFORCE MORALITY-what did devlin also believe?

Answer 30

law should be concerned with minimum not maximum standards

Question 31

SHOULD LAW ENFORCE MORALITY-what law excercises devlins theory?

Answer 31

defence of consent in non fatal- only allws to consent law and battery

Question 32

SHOULD LAW ENFORCE MORALITY- what did hart suggest?

Answer 32

dangers of populaism- most peoples views are by supersition or prejudice

Question 33

SHOULD LAW ENFORCE MORALITY-what is harts focus on compared to devlins?

Answer 33

harts focus is on the individual whereas devlins is on society

Question 34

SHOULD LAW ENFORCE MORALITY- examples for these applications

Answer 34

r v wilson v r v brown-moral and immoral