Morality Flashcards
Law is
●the collection of rules imposed by authority (the state); a form of social control binding upon human society.
Morality is
●A custom, habit or belief that is determined by man’s will rather than by law. Based on the concept of right and wrong or fault.
Key concepts I need to know
Key concepts we need to know:
●Legal positivism
●Austin & Hart
●Natural Law
●Aquinas & Fuller
●Characteristics of legal and moral rules
Legal positivism
Positivists believe… law is a legal rule which, if made in the manner recognised by the legislative power in the state, is valid irrespective of its content.
Command theory of law
Developed by Austin
●‘A law is a command by the sovereign, to be obeyed by the population and is reinforced with a sanction,
●FYI: Sovereign State –
●a defined territory with a population and government e.g. The United Kingdom
In other words laws are orders backed by threats
Austin has been criticised by Herbert Lionel Adolphus Hart (H.L.A Hart) as being too simplistic with his view.
Harts rules on legal positivism
Primary rules are rules of conduct; they tell you what you are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience.
●Secondary rules are concerned with the use and operation of primary rules e.g. how rules can be formed, amended or repealed or how rules are identified e.g. through Acts of Parliament and how they are applied
Hart dismisses any connection between law and morality
●i.e. a law’s validity cannot be judged upon moral acceptability
Natural law: Thomas Aquinas
He developed a number of different laws:
●Eternal law – laws regarding nature & the universe implanted in us by God e.g. law of gravity
Natural law is derived from eternal law and is implanted in us by God and we behave in a certain way that fulfils our purpose in life
●Divine law – standards man must conform to in order to attain salvation which are revealed by inspiration or revelation
Positive Human law.
●He developed rules of conduct
•DO GOOD AND AVOID EVIL
•Not to commit suicide (preserve life)
•Rear and care for offspring (procreate)
Natural law: Lon Fuller
●Law is earth-based (unlike Aquinas)
●Developed 8 principles of law known as an inner morality of law, which laws must follow in order to be valid.
●Existence of rules (not made up case by case)
●Promulgated (published)
●Prospective (not retrospective)
●Clear and concise
●Not contradictory
●Not require the impossible
●Constant (i.e. not changing rapidly)
●Applied and administered by the state (fairly not arbitrarily)
Note hart Criticised calling these a morality
Morality
A code of conduct developed within a society, which is accepted at large by members of the society
●Unwritten rules
●Not legally binding
Characteristics of Legal and Moral Rules
Origins
●Date of commencement
●Enforcement
●Ease of change
●Certainty of content
●Range of application
●Legal and moral rules share the same language (words) such as?
Right and wrong
Duty
Obligation
Responsibility
The influence of law on morality
•Legislation is sometimes passed in order to promote change
•E.g. The Race Relations Act 1965 which was to counter actions such as:
–‘No Blacks’ on the front of guest houses
–Non-whites being turned away from pubs and restaurants
•This did however have little influence and it was not until the Race Relations Act 1976 (which had extensive powers including employment) that opinions began to change.
The Relationship between Law and Morality (section 2)
●On the other hand we have moral rules that are not bound by law.
●E.g?
●‘Thou shalt not commit adultery’, but…
●Adultery = Not illegal in Britain (although illegal in some other countries).
●No legal duty to help those in danger
●No legal requirement to keep a promise
Relationship between law and morality
●Any legal system presupposes a certain amount of morality because if law is not essentially moral then there is no easy explanation of the obligation to obey
Characteristics of law and morality
Law:
Compulsory
Enforcement
Timing
Morals:
Voluntary
Time scale
Ought issues
Informal enforcement
