Law And Morality Flashcards
(20 cards)
What is the key difference between legal rules and moral rules?
Legal rules are created by Parliament or judges and are enforceable by sanctions. Moral rules are informal, based on beliefs or religion, and are socially, not legally, enforced.
What is legal positivism?
The idea that law is valid if made by a recognised authority, regardless of its morality. Promoted by H.L.A. Hart and John Austin.
What is natural law theory?
The belief that law must reflect moral standards. Unjust laws are not valid as they go against the idea of natural law ( lord devlin)
What did Lord Devlin argue in the Hart-Devlin debate?
The law should support shared morals to stop society from falling apart. Without common morals, society breaks down.
What did Hart argue in response to Devlin?
. Morality is subjective, and law should only intervene when harm is caused to others — influenced by Mill’s harm principle.
What is the harm principle and who created it?
J.S. Mill said the state should only limit individual freedom to prevent harm to others — not to enforce moral behaviour.
What is the “overlap thesis” in natural law?
The idea that law and morality must overlap. If a law is unjust, it is not valid — e.g. Nazi war crime trials used this reasoning
Why might legal positivists accept immoral laws?
They separate law from morality. If a law is passed correctly, it is valid, even if it’s morally wrong.
Give a case where law reflected changing morality
R v R (1991) — Marital rape was criminalised, showing the law adapting to modern views on consent and women’s rights.
Give a case where law conflicted with religious or parental morality
(Conjoined Twins) (2001)
• Parents refused surgery to separate conjoined twins due to religious beliefs - would result in one dying.
• Court overruled them to save at least one life.
• Highlights conflict between l based on best interests/public policy) and religious morality.
Give a case where law enforced moral values despite consent
: R v Brown (1993) — Consensual sadomasochistic acts were criminalised. Court said such acts were morally unacceptable and harmed society.
Give a case where the law respected private moral freedom
R v Wilson (1996) — Branding initials on wife’s buttocks was seen as private consensual behaviour. Law respected personal choice.
Give a case showing morality and harm are hard to separate
R v Cato (1976) — D injected his friend with heroin who later died. Even though both consented, it was treated as unlawful — showing the law’s moral judgement.
Give a case where the law applied strict morality unequally
: R v Brown (homosexual acts) was criminalised, but R v Wilson (heterosexual branding) was not. Shows moral double standards in law.
Argument in favour of law enforcing morality
Prevents social collapse (Devlin), reflects shared values, and protects vulnerable individuals (e.g. Brown).
Argument against law enforcing morality
Risk of oppression in a diverse society; morality is subjective what devlin thinks is moral would be a white British morality . Hart said law should only intervene to prevent harm.
Why is enforcing morality problematic in a pluralist society?
In diverse societies, people follow different moral codes (e.g. religious vs secular). Enforcing one moral code risks unfairness.
Give an example of morality changing over time
Homosexuality was illegal until 1967. Now same-sex relationships are protected under the Equality Act 2010.
Should law reflect morality? Summary point
Some argue yes — for social cohesion (Devlin). Others argue no — to protect individual freedom and avoid moral policing (Hart).
