Law and Morality

Question 1

What are laws?

Answer 1

• Made and applied by state
• Come into force at set point in time
• Apply to everyone
• Mandatory
• Enforced by state
• Enforced by sanction/penalties

Question 2

What are rules?

Answer 2

• Developed by society
• Change overtime
• Apply to those who accept them
• Voluntary
• Not formally enforce
• Enforced through disapproval/ostracism

Question 3

What did Harris define rules as?

Answer 3

Beliefs, values, principles and standards of behaviour

Question 4

What does it mean to have an overlap between legal and moral rules?

Answer 4

• Old laws are often influenced by morals (theft, murder)
• Morals influence judicial (R v R) and parliamentary (abortion, suicide, gay rights) decisions
• Society campaigns for legal change (Howard league against the death penalty)

Question 5

What are the 3 main reasons for the overlap between legal and moral rules?

Answer 5

• Shared aims (to achieve order and effectiveness of societal functioning)
• Interlinked (sanctions are a form of disapproval, laws forbid some immoral acts: Sexual Offences Act, Obscene Publications Act, porn regulations)
• Sit side by side not in a vacuum of their own (shared terminology, procedural = guilt/blame/fault, substantive = duty of care, dishonesty)

Question 6

What does it mean to have a divergence between legal and moral rules?

Answer 6

• Laws without morals = SLO’s (Tillstone), state of affairs (Winzar), intoxication (Kingston), consent (Brown), thin skull rule (Blaue)
• Morals without laws = no good samaritans law, lying, adultery

Question 7

What are the 3 main reasons for the divergence between legal and moral rules?

Answer 7

• Morality subjective in a pluralistic society
• Cts shy away from moral issues due to unelected judges
• Parliament not introduce public moral bills (introduced as PMB’s eg. euthanasia, death penalty, hunting)

Question 8

How does natural law theory relate to law and morality?

Answer 8

• Good laws are derived from what is moral
• Aristotle = nature
• Aquinas = good and God
• Lord Lloyd = essence of natural law is objective moral principles
• Kant = categorical moral imperatives

Question 9

How does positivism relate to law and morality?

Answer 9

• Laws imposed for functionality and are not based on morals
• Austin = immoral laws can still be valid (command theory)
• Bentham = validity based on utility not morality

Question 10

Explain Lord Devlin’s argument against the Wolfenden report in the Hart-Devlin debate

Answer 10

• Natural law theory
• Slippery slope (undermine bestiality, abortion, incest)
• “Punish abnormal acts and those which disgust”
• Moral = what is acceptable to the ordinary man, “the man in the jury box”
• “Law without morality destroys conscience and is the road to tyranny”

Question 11

Explain Professor Hart’s argument for the Wolfenden report in the Hart-Devlin debate

Answer 11

• Positivism
• Individual freedoms not contingent on social integrity
• Countered slippery slope argument with line in the sand (harm principle)
• Appreciates grey areas (euthanasia) and the effect of legalising the unknown
• Humanist approach = individual welfare in a pluralistic society

Question 12

Explain the Hart-Fuller debate

Answer 12

• Following the Nurenberg trials to convict Nazi’s
• International trial for crimes against humanity but contrasted the principle of no retrospective liability
• Hart = positivism, follow law made by sovereign power (Nazi Germany), command theory
• Fuller = natural law theory, actions so morally perverse

Question 13

Give some examples of where morality is present in substantive law

Answer 13

• Criminal
  –> Dudley v Stephens (cannibalism)
  –> Ivey v Genting Casinos (dishonesty)
  –> Brown/Locke (sadomasochism)
• HR
  –> Mosely/Shaw v DPP (prostitution)
  –> Otto Preminger (antichrist)
  –> Gibson (abortion)
  –> Lemon+White House v Gay News (homosexuality)

Question 14

What are the 2 main ongoing moral issues?

Answer 14

• Euthanasia
• Sadomasochism

Question 15

Evaluate law and morality

Answer 15

• Hard to define morals due to pluralism
• Hard to enforce due to different law making powers
• Parliament reluctant to make a moral stance due to political impacts (PMB’s to remain impartial)
• Morals develop faster and are more flexible than laws
• Judge made law controversial as unelected, unrepresentative and out of touch (Brown)
• Morals uphold social standards but immoral laws prioritise functionality
• Hart-Fuller debate = basic legal principles v humanism
• Natural law theory-positivism = categorical moral imperatives v functionality