Law and Morality

Question 1

Morals (Phillip Harris)

Answer 1

Set of beliefs and values.

Principles affecting standards of behaviour

Question 2

Features of morals

Answer 2

Change over time, not shared by all members of society. Many based on dominant religion in soceity

Question 3

Laws (John Austin)

Answer 3

Set of rules recognised and applied by the state.

Command made by sovereign power

Question 4

Laws and morals overlap

Answer 4

Yes in some case (John Salmond - two intersecting overlapping circles).

E.g. many long established have connections - laws on murder and theft bible 10 command

Question 5

Changing moral view —> change law

Answer 5

Legalise homosexuality, as general public attitudes of these issues gradually change > law change in response to these alteration

Question 6

Law changed by judges

Answer 6

(R v R) recognised P morality change and previous decision no longer accepted

Question 7

Increasingly difficult for law to enforce morality

Answer 7

Parliament struggle to pass laws to please everyone’s morals and beliefs

Question 8

Durkehiem (Pluralist)

Answer 8

Possible in small society w/ common morality and common law but in modern based on social status, income, ethinicity, etc.

Private members bills pass controversial laws to avoid revealing views on issues

Question 9

Devlin

Answer 9

• Paternalistic approach - law should set the basic standard or morality and that society should aim for higher standards
• Devlin reacted to the Wolfenden report 1957 (led to the legalization of homosexuality in Sex Offences Act 1967) - critical & thought there should be a shared morality in society, and that society may disintegrate if morals were not upheld

Question 10

Hart

Answer 10

• Prf Hart disagreed (influenced by utilitarian approach of JS Mill) - both thought a minority in society should not be made to conform to the will of the majority
• Hart went further - shouldn’t enforce morality as it would infringe a persons autonomy, describing such interference as unnecessary, undesirable and unacceptable

Question 11

Natural law (St Thomas Aquinas)

Answer 11

Come from God

Question 12

Fuller

Answer 12

Valid legal system 8 req:

• In existence
• Published
• Understandable
• Consistent

Question 13

Positivists (Bentham)

Answer 13

Criticise natural law

Question 14

H v Fuller

Answer 14

This disagreement seen in Hart v Fuller debate - laws made by German Gov during war were still valid (although immoral, they were legally enforceable) according to Hart

Fuller - laws went against N.law and that, as they were immoral, they were never actually valid > German courts agreed (prosecuted informants as war criminals even though what they had done was legal during the war)