Flashcards in Law And Morality Deck (41)
What is a definition of law?
Oxford dictionary of law states
'A system of enforceable rules that regulate the conduct of people in society'
What is a definition of morality?
Phil Harris states:
A society's code of morality may be defined as a set of beliefs, values, principles and standards of behaviour, and such codes are found in all social groups'
What would a normative description of morality be?
Holds the view that there are certain moral values that exist independently of social convention. E.g.
Do not lie
Treat others as you would like to be treated.
What are the formal distinctions between law and morality?
( Harts argument summarised by Leslie Green)
There are formal legal rules
Law is subject to deliberate change
Some legal rules are unimportant and trivial
Strict liability is possible
If you break the law there are official sanctions
Moral rules which are not subject to deliberate change
Many moral principles are very important
No strict liability
No formal sanctions
What does it mean when questioning whether there is a prima facie obligation to obey the law?
That there is an obligation to obey the law regardless of the content. This is due to the status of legal rules
What does Lex iniusta lex non est mean?
An unjust law is no law at all.
Name some examples where individuals have refused to obey the law if it was unjust?
ie- the obligation to obey may be outweighed by an individual moral obligation to not behave in a dishonest manner
Civil disobedience on the grounds of religious or moral principles
Martin Luther King- USA
Conscientious objection- WW1
Ghandi colonial India
Nelson Mandela- member of the African National Congress( ANC)
What is the difference between civil disobedience and ordinary law breaking?
In civil disobedience, the offender is open about breaking the law in the hope to communicate their objection to that particular law with the state.
What was the Rivonia Trial?
Nelson Mandela was put on trial with ten other activists for sabotage. He would have faced the death penalty if convicted.
He gave his justifications for fighting against the state in his opening speech known as the rivonia trial on 20th April 1964.
What is natural law?
It considers a higher law distinct from state law which the state should not violate( the law of the state known as positive law)
What is teleology?
It is a natural law theory based around the view that the universe has a purpose
Supporters of this were
Aristotle- nature makes the organs to suit the work they have to do, not the work to suit the organ
Cicero- believed that God was the author of natural law and is universally binding. Felt it was a sin to alter, amend or repeal any law.
Mainly Ancient Greek and Roman thinkers
What is Christian natural law theory?
Felt the source of the higher law was the will of god.
St Augustine of hippo
St Thomas Aquino- natural law is participation to eternal law
What is secular natural law theory?
Natural law that did not rely on divine authorship or a cosmic order.
Grotius-natural law would be the same regardless of god
Locke-it is reasonable for individuals to enter into a contract with the state, accepting the states authority in return for protection of life, liberty and property.
If the state does not protect those elements then an individual has the right to resist the state.
What were John Finnis seven basic goods?
Finnis idea was there were certain ways of being that inferred what was right and wrong.
4 aesthetic experience
5 sociability or friendship
7 practical reasonableness
Which documents can you see the influence of natural law?
American Declaration of Independence 1776
The UDHR 1948
Both have sources as the law of god or human nature.
What is positivism?
The want to understand the law as it really is. There is no connection between law and morality. A law does not stop being a law because it fails a moral test. Therefore an immoral law may be a law.
Law is created by humans
Law is social fact/by rules declared by authorities like courts and legislatures. this makes the law certain and everyone understands their rights and duties.
Name the legal positivist writers?
Hume- verifiable facts
Bentham-appealing to natural law was no better than basing a decision on private opinion.
Hart- law is law regardless of whether it is just
What was the grudge informer case details?
In 1949, woman was prosecuted for the offence of illegally depriving her husband of his freedom under s 239 of the German penal code.
By reporting derogatory remarks about the nazi regime, known as informer statutes. He was sentenced to death but it was not carried out but was sent to fight and survived. She states that she had not committed a crime as she had acted in accordance to the law as it stood at the time.
What was the Hart - fuller debate?
Following the grudge case.
The debate questioned if unjust laws are valid laws
Hart felt the woman should not be found guilty as she was following a law regardless of whether it was just. He suggested that a retrospective statute should be passed before punishment given. Highlighting the importance of the rule of law.
Fuller felt the law was immoral and therefore invalid. The validity of a legal system was dependent on the external and internal morality of law.
External- the rules of the legal system must command respect
Internal- morality of law questionable if leader added ad hoc command.
He felt that the courts should see the law as invalid.
What was the Hart- Devlin debate about?
It was about whether the law should have a role in enforcing moral views.
Devlin felt the law should impose moral views as society was held together by shared moral bonds that without, society would disintegrate. Only behaviour that would around disgust in an ordinary person should be criminalised.
Hart- no evidence that society depended on shared morality to survive. Enforcing the majority view could persecute the minority.
What sparked the Hart - devlin debate?
The Wolfenden report 1957, states that there should be an area of private morality that isn't the laws business.
What is the harm principle?
J S Mills 1859
The law should only limit individual freedom to avoid harming others.
What is the current law regarding recreational drugs?
Misuse of Drugs Act 1971
Passed after signing the UN treaty - Single Convention on Narcotic Drugs 1961. This aimed to restrict the International unauthorised supply of drugs
How many categories does the Misuse of Drugs Act 1961 have?
3. Class A,B,C with a being the most severe.
Class A- crack cocaine, heroin , LSD. 7 years in prison for possession and up to life in prison for supply or production.
Class B- cannabis, codeine, amphetamines and barbiturates. 5 years imprisonment and 14 years for supply and production.
Class c- diazepam , anabolic steroids. 2 years imprisonment for possession and up to 14 years for supply and production.
What is the difference between illicit and legal drugs?
Illicit are illegal drugs such as heroin and cocaine
Legal drugs are tobacco and alcohol.
What are the death rate figures for tobacco, alchohol and drugs in the year?
In 2012, tobacco killed 5 million people a year
alcohol killed 2.5 million a year
Drugs 500, 000 a year.
What were Professor Sandels moral arguments in relation to the prohibition of drugs?
1- questions if the law should promote well- being by discouraging individuals from engaging in a harmful or immoral activity
2-counter argument that it is not the laws place to determine a particular way to live.
How does the United Nations Office on Drugs and Crime( UNODC) define drug trafficking?
The global illicit trade involving the cultivation, manufacture, distribution and sale of substances which are subject to drug prohibition laws.
Where is the biggest market for illicit drug consumption?
North America and Western Europe- about 80% of cocaine consumption.