Law and Morals Flashcards
(14 cards)
Explain
Law - [Rules]
Theory [Body of Principles, Administrations]
Facts about the Law - 4 bullet points [Change,Follow,Enforce,Involuntary]
Sir John Salmond
Law and Morals
- Set of legal rules enforceable by the state.
Sir John Salmond - A body of principles recognised and applied by state in administration of justice.
1) Can be changed instantly by precedent or act.
2) Everyone follows the law.
3) Enforced by courts sanctioning you.
4) Not voluntary and apply to everyone
Explain
Morals - [mostly agreed, guide]
Theory [Set, shared]
Facts about morals - 4 bullet points [Develop,NotAll,Peer-pressure,Agreement]
Phil Harris
Law and Morals
- Morals are considered to be a mostly agreed upon norm to guide conduct.
Phil Harris - A set of beliefs, values or principles on behaviour, shared by or part of society.
1) Developed through opinion overtime and not instant.
2) Not everybody follows them.
3) Enforced by peer-pressure and conscience.
4) Are voluntary and apply to those who agree to be bound by them.
Explain
Pluralism - Theory [Pin-point]
Emile Durkheim
Law and Morals
Emile Durkheim - We live in a pluralistic society, can't pin-point exact set or common values shared by everyone.
Introduce
Positivism [Rule, State]
1 bullet point
Law and Morals - Positivism
- Positivists believe law is legal rule, if made correctly by state, regardless of it content it is valid.
Explain
Positivism Theories
1 [Enforce, many, freeze]
2 [Harm principle]
3 [Utilitarianism, revision]
HLA Hart, John Stuart Mill, Jeremy Bentham
Law and Morals - Positivism
HLA Hart - Using law to enforce morals is unnecessary, as society has many moral standpoints, and to enact that into law would freeze morality. John Stuart Mill - Harm Principle, law should exist to prevent harm and not impose moral opinions. Jeremy Bentham - Theory of Utilitarianism, believes morality is not essential attribute to the law, law always needs revision, so can't contain moral attributes.
Explain
Positivism Cases
Case 1 [Not interfere, unless harm, did not adress]
Case 2 [Fairness and doesn’t question]
Wolfenden Report, Hall and Preddy v Bull
Law and Morals - Positivism
Wolfenden Report - Not function of law to interfere with a person's private life, unless harms others, this updated law to treat homosexuals equallty, did not adress moral question as not needed in law. Hall and Preddy v Bull - Deciscion based on equal treatment of same sex couples, and not moral opinions. Based on fairness and doesn't question morality.
Introduce
Natural Law [High moral authority]
Law and Morals - Natural Law
- Believes law is only valid if compatible with high moral authority, without this law isn’t valid.
Explain
Natural Law - Theories
Theory 1 [Religious principles]
Theory 2 [Basic standard, higher moral, common morality, punish]
Theory 3 [Built into concept]
St Thomas Aquinas, Lord Devlin, Lon Fuller
Law and Morals - Natural Law
St Thomas Aquinas - Law is based on higher moral authority, law is only valid if it adheres to religious principles. Lord Devlin - Thought law should set basic standard of morality, and that society should aim to achieve a higher moral standard, he believes if society shares same common morality, law should punish acts that offend that. Lon Fuller - Principles of legality are built into the very concept of law, not genuine law if fails to meet these standards.
Explain
Natural Law - Cases
Case 1 [Sex and morals]
Case 2 [Euthanasia]
Example of Both
Case 1 [ensure equal, allowed religious instituions]
R v Wilson, Pretty, Marrige (Same Sex Couples) Act 2013
Law and Morals - Natural Law
R v Wilson - Deciscion made solely on moral values, on sex and sex between adults. Pretty - Deciscion based on views they had and believed that wider society had on euthanasia. Marrige (Same Sex Couples) Act 2013 - P changed law to ensure everyone had equal right to marry regardless of sexuality, however P allowed religious institutions to not allow a ceremony, if it conflicted with their religous beliefs.
Evaluate
Positivism
* Believe sanctions provide people with reason to obey the law and not morals.
* How does it support Pluralism? What should the law be instead of enforcing morals? Why is it fair to exclude morals?
* Why is there injustice due to black/white? What do morals bring into deciscion? What might law not match? This leads to society being less likely to? What kind of law do you still have to follow in positivism?
Evaluation
- Can’t please everyone in diverse society, should be fair, just and equal, morals differ from person to person anyways.
- Law gets based on this, less flexibility in deciscions, but morals allow flexibility, socieities morals, follow the law as don’t agree. Immoral but correctly made law which becomes a problem for unfair laws.
Evaluate
Natural Law
* People obey law for moral universal ethical principle so linked.
* How does Occupiers Liability Act 1984 follow morality? What happens if law follows morals?
* Why is it impossible to link the two? What does a person with different morals have to do? A case for this [Abortion Act 1967], why is law change slow?
Evaluation
- Common humanity principle, to protect a tresspasser from danger on your land, people more likely to follow the law.
- As live in a pluralistic society, hard to reflect different morals as everybody differs in morals to eachothers, even with different morals, they’d still have to follow the morals in cases such as Abortion Act 1967, which is morally a quesitonable area of law, slow law change as morals like LGBT rights took long time to develop.
Evaluate
Pluralism
- UK is a pluralistic society so it’s difficult for law to always reflect morals.
- What do people differ on? What instances wouldn’t morally be a problem for most? What issues is morally a problem for some? [Abortion]
- What body recognises pluralism? What gets a wider margin? What are obscenity morals based on? How is this shown in R v Penguin Books LTD?
Evaluation
- Beliefs and influences so diverse moral views amongst citizens, murder, as universally agreed upon, Abortion and Act 1967, legalised but not everyone agrees or support the act of abortion.
- ECtHR, moral issues, such as obscenity based on publics mind and needs, book was obscene and banned, but now literature like it is more common, people are generally either offended by it or not offended by it.
Evaluate
Law and Judges Morals
- Judges uses morals to form basis on deciscion, can use general societies view or own view.
- What can judge change law to match? This keeps the law? How is this shown in R v R?
- What can judge end up imposing instead? What is the difference in Brown and Wilson? What does this conflict on? Is it reflective of wider society?
Evaluation
- Quickly to match public morals, keeps law in line with modern moral opinions. Made marrital rape a crime, to reflect the modern view on women.
- Own bias, Brown, refused consent for serious injuries, Wilson, allowed consent for serious injuries, conflicts on the morals of judges who heard both, no.
Conclusions
1) Does law reflect or enforce morals?
2) Should law reflect morals?
No need to anwser just flip
Based on the question got on the exam
1) Morals impacted some law change, relationship between the two as murder is morally wrong from a higher prespective. Society is pluralistic, so each have different morals, impossible to reflect every moral, so law can only somewhat reflect morals.
2) To a extent, there has to be some morality, everyone should be treated equal and fair, not morally right to discriminate, not every moral gets reflected though, only widely agreed morals like murder being bad should reflect the law.
