law and morality

Question 1

what is a rule

Answer 1

A general norm which tells you what to do or guides conduct. Usually not morally binding bbut followed due to their context e.g rule of sport

Question 2

what is the formal definition of legal rules

Answer 2

‘body of principles recognised and applied by the state in the administration of justice’- sir john salmond

Question 3

what is a legal rule

Answer 3

 Different to habits or practices as they are more enforceable (hart)

Question 4

why is this enforced (3)

Answer 4

Moral obligation (such as crimes)

Fear of penalty

Seen as relevant and legitamate

Question 5

what is a moral rule formal definition

Answer 5

 ’a set of beliefs, values, principles and standards of behaviour’ (phillip harris)

Question 6

what is a moral rule

Answer 6

Personal beliefs- usually linked to relgion or our upbringing

Sometimes reflected in law (e.g murder) but not always (e.g adultery)

Question 7

what are key features of a legal rule

Answer 7

 can be introduced, altered and repealed instantly, but action to do this by parliament often only occurs after morals have been changed

Rules which are binding and enforceable- a mandatory code of conduct

Are followed because:

Fear of penalties

Seen as legitamate (made by an elected body for our benefit)

Tell us how to behave

Likely to reflect the morals of society

Apply to all people in the same way

Question 8

what are some key features of moral rules

Answer 8

develop and change over time- cannot be immediately altered

Change slowly accoreding to the will of the people

Relfect our beliefs and our religion

Voluntarily followed because of a sense of shame and guilty

No official punishment

Tell us how to behave

Likely to reflect the laws of society

Likely to vary from one person to the next

Question 9

what are 2 case examples of morality changing/ affecting the law in society (criminal law cases)- a03

Answer 9

r v r 1991: martial rape criminalized (shows how slow law is adapting)

Re A (conjoined twins0: religious views of twins parents overruled in favor of medical science

Question 10

examples of moral rules which are not reinforced legally in any way- a03

Answer 10

adultery (although this is a ground for divoice under matrimonial causes act but no criminal charges)

moral duty to help someone who is in danger- not legally enforced in tprt or criminal law as it could be (goof samaritan act)

Question 11

examples of the law changing our moral attitudes in society- a03

Answer 11

road safety act- drink driving

health act- smoking in public places

Question 12

what is pluralism

Answer 12

the idea that society exists with lots of different view points and opinions- and all of these are allowed to co exist together

Question 13

what does this then mean (3 factors it may depend upon)

Answer 13

aw is constantly trying to reflect a wide range of views and moral opinions in our pluralist society:

 moral views ofetn change between generations

 change depending on culture, location, tradition, and religious influence

 morality in society changes a lot over time (e.g marital rape was not a crime until 1991- R v R)

Question 14

who discussed pluralism and the difficulty of creating a common code of morals

Answer 14

Emile Durkheim

Question 15

what 2 things were stated

Answer 15

 in a small community it may be possible to find a commen stet of motald eberyome agrees with

 however, in our pluarlist society this is imoissible as opinions and people are diverse due to specialosation of labour, ethnic diversity etc

Question 15

what case shows it may be hard to enforce moral code

Answer 15

Re A (conjoined twins)

Question 16

where else is this seen

Answer 16

European Court of Human Rights, where the diverse and pluralist views of not only one country but a large number of countries need to be considered

Question 17

whats a case example of this

Answer 17

Seen in cases such as otto- preminger involving porn film

Use of margin of appreciation helps the ecthr to give some freedom and flexibility to states to decide their own limitations

Echr includes ‘public and health morals’ as a legitamate reason for limiting certain qualified rights in the article (e.g 8,10,11)

Question 18

what are examples of moral laws made by parliament (2)

Answer 18

R v R- law surrounding marital rape was changed

Shaw v DPP- where judges created the common law offence if outraging public decency

Question 19

examples of these rules made through the common law by judges (2)

Answer 19

R v R- law surrounding marital rape was changed

Shaw v DPP- where judges created the common law offence if outraging public decency

Question 20

what are the issues with this (4)

Answer 20

been slow with changing these laws
often avoid passing laws which have a moral element as they are seen as controversial and may divide society
Political parties rule the timetable of debates in Parliament and are unlikely to schedule debates on laws- may divide opinion and affect chances of winning next election
judges have been criticised for being out of touch with society when passing decisions in moral cases
Lack of diversity in the profession means a lot of judges are privately educated, white men who may not be in touch with the moral views of society

E.g. compare potential homophobia in decisions of R v Brown / R v Wilson

Question 21

aristotle meaning (therories stuff now)

Answer 21

believed all law must coincide with Natural Law – the Law of God

Question 22

aquinas meaning

Answer 22

any law which was a variance on divine law (Gods law) was corrupt and therefore not legally valid

Question 23

lloyd

Answer 23

there are “objective moral principles which depend upon the nature of the universe”

Question 24

fuller

Answer 24

an “inner morality of law” There are absolute values and “morals” – right and wrong exist under higher/divine law Therefore there is a fundamental moral requirement to the law

Question 25

whats an example of this

Answer 25

murder/ theft being based off the 10 commandments (like the you shall not steal, you shall not murder etc)

Question 26

who proposed positivism

Answer 26

Hart

Question 27

what does this state

Answer 27

natural law is like 'nonsense on stilts' it couldn't be proven. He argued that laws are simply commands from a sovereign that most people follow, enforced by consequences, regardless of morality. believes law is law, no matter whether it is moral or not.

Question 28

whats a case example of this

Answer 28

Gillick (children who are Gillick competent can consent to medical treatment – whether parents like it or not) Abortion is legal even if some may object to it

Question 29

what are 3 strengths of naturalism

Answer 29

Based on reason, making the law accessible to anyone who applies logic, ensuring certainty and predictability. Does not consider unpredictable human emotions in decision-making. Legal reasoning reflects a single moral perspective, whereas God's law is rooted in broader morality.

Question 30

disadvantages of natural law

Answer 30

Deciding what is "natural" can be challenging, as seen in questions like whether doctors should prolong life when death is a natural consequence of illness. Some principles of Natural Law can lead to absurd consequences because they oversimplify human differences, such as prohibiting infertile couples from having sex. Natural Law's vague and general rules are not easily adaptable to diverse views or specific situations in different contexts.

Question 31

advantages of positivism

Answer 31

Citizens can live their private lives without legal intervention as long as they are not causing harm to others. The law should intervene to prevent harm to others, ensuring protection for the vulnerable. Provides flexibility for social change by allowing morals to evolve over time, as laws do not impose rigid moral standpoints.

Question 32

weaknesses of positivism

Answer 32

Critics argue that the law should regulate morally objectionable behavior to prevent harmful actions in society. Excessive protection of privacy can put vulnerable groups, like children, at risk by limiting their ability to report harm. Ignores that most ideas of right & wrong and therefore most existing laws (including not to harm one another) come from moral perspectives historically. Just one set of morals

Question 33

the debate- who had this debate

Answer 33

hart and devlin

Question 34

what is the wolfendon report 1957

Answer 34

Recommended the legislation of homosexuality on the basis that the law had no place to intervene in 'private morality' and private acts between to consenting adults

Question 35

what was harts opinion of this

Answer 35

in favor of report

Question 36

what was devlins opinion on this

Answer 36

opposed this and saw it as too liberal (tolerant, respective)

Question 37

what did lord devlin state

Answer 37

Society needs moral consensus and it is up to the law to uphold and frame this Morals should reflect the majority view in society (such as how Parliament works) 1. Individuals should have maximum freedom and privacy in keeping with the morals. 2. Punishment only for behaviour which is “so abominable that its very presence is an offence”.

Question 38

what is a bill that support this

Answer 38

*The Assisted Dying Bill was not passed and law surrounding euthanasia has a heavy moral aspect (life and death) which shows natural law’s influence over the law  

Question 39

what was professer harts view

Answer 39

Law should not enforce moralistic views as it prevents morals from being able to adapt and change in society Majority in society may object to something due to ignorance/prejudice/misunderstanding, and not just due to moral views 1. Punishment would be harming someone who hasn’t harmed anyone else (wilson) 2. Free choice leads to learning through experimentation. 3. Exercise of free choice is a moral value. 4. Regarding sexual morals, suppression of sexual urges can cause harm to the individual emotionally. Law should not punish those indulging in behaviour which may disgust others but does not harm anyone

Question 40

what is a law and an act (think articles) that supports this

Answer 40

Sexual offences act 1967 legalized homosexuality Obscenity laws/ Article 10 ECHR allow expressions which 'shock, disturb and offend'

Question 41

strengths of hart (2)

Answer 41

Recognizes that morals are necessary in society to uphold a basic standard of right and wrong, and should be reflected in law Advocates for high moral standards in society

Question 42

weaknesses of hart (2)

Answer 42

Imposes one set view on society – this has been established to be impossible in pluralist societies (Durkheim) so may not be practical. Can stifle progression in society as often the moral standpoint reflected in law is too rigid

Question 43

strengths of devlin (3)

Answer 43

Hart’s positivist view recognizes that change happens in society over time and the law needs to adapt to this. Hart’s view supports pluralist societies as the law is not intervening unless harm is caused to others Protects individual freedoms

Question 44

weaknesses of devlin

Answer 44

If law does not set a moral standard there is a risk of eroding all morals in society. Can put vulnerable people at risk – if focus is on individual freedoms, there is no guarantee that harm is not being suffered in private as nobody is checking.