Law And Morality Flashcards
Who defines the law and what does he define it as
John Austin- command issued by a sovereign power to an inferior enforced by a threatened sanction
Who’s defines morality and what does he define it as
Phil Harris- socities code of morality is a set of beliefs, values, principles and standards of behaviour
Whats one way law and morals are distinct from each other
Law- drawn from clearly identifiable sources (offences of GBH with intent contained in s18 offences against the person act 1861)
Morals- influenced by variety of factors where the amount that each has contributed is unidentifiable (upbringing, education, religious beliefs)
Whats a second distinction between law and morals
Laws- relatively easy to change
Morals- take decades too change (views on smoking inside)
Whats a similarity of law and morals
Both normative and guide social conduct/behaviour specifying what ought/ought not be done
Where is there an over lap between law and morals and whos theory suggests this
Salmonds theory of interlocking circles- areas of convergence where the principles re-enforce each other
Whats an example of salmonds interlocking circles theory for convergence
In R V R- HOL upheld D’s conviction of rape by overruling the long-standing martial exemption (law eventually caught up with public morality- rape clearly immoral irrelevant of D and V relationship)
What case shows evidence of divergence
Nettleship v Weston- learner driver not morally at fault when they caused harm to a passenger, but they are still liable in the civil law of negligence
What does lord devlin believe about the law
Law need to reflect public morality (without shared ideas on politics, morals and ethics, no society can exist
What case can lord devlins views be seen in
Shaw v DPP- hOL upheld D’s conviction for publishing a booklet with the names and addresses of prostitutes due to the fact that the purpose of the law is to conserve moral welfare
What is professor harts views on morality
Majority shouldn’t impose their morality and only punish that which causes harm
What report shows the views of professor harts approach
Woldenden report on homosexual behaviour and prostitution- it’s not a function of the law to intervene in the private life of citizens, there must be a private realm of morality
What case would argue agisnt the views of professor hart
R v brown- criminalised D for offences of Sadi masochistic activity that took place in private and between consenting adults
