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Law paper 2 civil law > law and morality > Flashcards

law and morality Flashcards

1
Q

what is a rule

A

something that determines the way in which we behave

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2
Q

what is a moral rule

A

something we voluntarily submit ourselves too

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3
Q

what is a legal rule

A

something that is enforceable in some way

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4
Q

what are the two main theories relating to the nature of law

A
  • legal positivism
  • natural law
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5
Q

how does sir John salmond describe law

A

“a body of principles recognised and applied by the states in the administration of justice’

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6
Q

how does John Austin describe law

A

“a command issued from a sovereign power to an inferior and enforced by coercion”

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7
Q

characteristics of legal rules

A
  • compliance is necessary
  • apply to all members of society
  • breach results in state sanctions and procedures (eg MLS for murder)
  • they are made and take effect at a precise time (human rights act 1988 wasn’t in effect till 2000)
  • can only be changed by parliament or judges
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8
Q

How does the Oxford dictionary define morality

A

“a particular system of values and principles of conduct, especially one held by a specified person or society”

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9
Q

how does Phil Harris define morality

A

“a set of beliefs, values, principles and standards of behaviour”

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10
Q

characteristic of moral rules

A
  • often stem from religion
  • taught by elders of society
  • develop gradually
  • enforced informally via social pressure (homosexuality)
  • morality changes with society
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11
Q

name some differences between legal and moral rules

A
  • legal rules change instantly v moral rules evolve
  • legal rules are enforced by the state v moral rules are enforced socially
  • legal rules can be committed without mens rea v moral rules can only be committed voluntarily with full mens rea
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12
Q

what are the three factors that Emilie Durkheim identified that contribute towards the breakdown of common morality

A
  • increasing specialisation of labour
  • growing ethnic diversity within society
  • fading influence of religious beliefs
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13
Q

what is law according to natural lawyers

A
  • they would argue that just because a rule has been created in a certain way, doesn’t mean it is a law
  • they instead argue that in order to be a law, a rule must reflect ‘natural law’
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14
Q

what does st Thomas aquinas say
(natural lawyer)

A

“if human law was at balance with the divine law, it was not legal but rather a corruption of the law”

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15
Q

what does professor Lon fuller argue
(natural lawyer)

A

that law must have an ‘inner morality’, meaning it must comply with 8 principles, such as being understandable and prospective

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16
Q

what do natural lawyers believe about law and morals

A
  • they see laws and morals as closely interlinked
  • morals could be said to be the foundation of legal systems
17
Q

what does Jeremy Benthem argue (positivist)

A
  • described natural law as nonsense on stilts
  • Bentham argued that a law is a law if it has been created in a certain way
  • “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”
18
Q

what is the command theory that was developed by John Austin

A
  • laws are commands issued by the sovereign
  • such commands are enforced by sanctions
  • a sovereign is one who is obeyed by the majority
19
Q

how does salmond describe the relationship between law and morals

A

as two intersecting circles: they coincide and diverge

20
Q

what does coincide and diverge means

A
  • coincide = laws with moral connections
  • diverge = no moral connections
21
Q

give examples of laws based on moral principles (converge)

A
  • law on murder imposes MLS
  • duty of care established in Donoghue v Stevenson introduced the neighbour rule
  • OLA - warnings need to be provided by occupier
22
Q

give examples of new laws influenced by morals (converge)

A
  • law in relation to homosexuality (sexual offences act 1967)
  • disability discrimination act 1955 and all discrimination laws - equality act 2010
23
Q

give examples of laws that influenced society (converge)

A
  • marriage act 2013 legalised same sex marriage
  • breach - reasonable man
24
Q

give examples of when parliament created laws which only reflect the moral values of certain members of society (converge)

A
  • abortion act 1967 legalised abortions
  • marriage same sex couples act 2013
25
Q

give examples of laws that can be said to be immoral (diverge)

A
  • R v R made martial rape legal
  • Breach - inexperience (nettleship) shows that the law is immoral to those with inexperience
26
Q

why was the wolfenden committee set up and what did it investigate

A
  • was set up to consider the laws and practice relating to homosexual acts and prostitution and the treatment by courts of cases involving these
  • investigated the extent to which the criminal law should become involved in private lives of individuals
27
Q

what were the three recommendations of the wolfenden committee

A
  • soliciting in the streets should be made an offence (The street offences act 1959)
  • prostitution should be private and therefore decriminalised
  • homosexual acts between adults in private should be decriminalised (sexual offences act 1967)
28
Q

what debate did the wolfenden committee produce

A

Hart - Devlin debate
- the debate was about the extent to which the law should intervene to uphold moral values

29
Q

what did Hart believe

A
  • that a minority of people shouldn’t have to conform to the moral opinions of the majority whilst in private
  • we don’t all have to agree with each other about morals
30
Q

whose work did Hart draw upon and what did they argue

A

Mill
who argued that society should not impose morality on individuals as individuals should be free to choose how they behave, provided that no harm is caused to others

31
Q

what did Delvin believe

A
  • he believed that without shared ideas on politics, morals and ethics, society can’t exist
  • argued that the fabric of society is dependent on shared morality
32
Q

whose work did Delvin draw upon and what did they argue

A

Sir James Stephen
who argued that the law has a duty to proscribe behaviour condemned by society at large

Law paper 2 civil law (9 decks)

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