Paper 3 Section A Flashcards
Distinction between law and morality
Law and Morality
Law - Set of rules to prevent undesirable behaviour, provide ways to sett;e disputes + arrangements betwee private individuals, create rules for running a country and ensure law and order
Morals - Set of personal values/beliefs that are based on notions f right and wrong but not necessarily enforceable/shared by society as a whole
Law and Morality
Laws
Law and Morality
- Made by formal institutions (Parliament, Courts)
- Can be instantly made/repealed
- Existence can be established + defined exactly
- Breaking them leads to some sort form of sanction, punishment or remedy
- Society’s attitude to the law is irrelevant; we all must follow them
- Not necessarily fault-based (e.g. strict liability)
Law and Morality
Morals
Law and Morality
- Evolve as society changes with no formal creation
- Often slow to change (with society’s attitudes - can take decades
- Only vaguely defined and can differ person to person
- Breaching moral standards leads to social condemnation/alienation but not eforceable punishment/sanction
- Reflect views of society usually, most people share them
- Usually fault-based
Law and Morality
Is there a relationship between law and morality?
Law and Morality
- UK = pluralistic society (multiple cultures, religions, political views, customs etc.)
- Individuals in society can have differing and sometimes conflicting moral views e.g. views on abortion)
Law and Morality
Cases illustrating relationship between law and morality
Law and Morality
R v Brown - sadomasochistic sexual activity - ‘pleasure derived from the infliction of pain is an evil thing’ (Lord Templeman) - based verdict on morals
Shaw v DPP - D published a prostitute directory - expression restricted due to moral welfare of the state
Gibson - Expression restricted by arresting artis (foetus earrings) for outraging public decency - link between criminal law/human rights + morals of society
Dudley and Stephens - Cannibalism necessity case - Ds convicted of murder - still immoral/wrong to eat someone even if you yourself would die if you didn’t
Shah and Shah - Shopkeepers charged with strict liabilty offence of selling lottery tickets to under age customers
Law and Morality
Cases illustrating lack of relationship between law and morality
Law and Morality
R v Wilson - buttock branding (consent) - ‘consensual activity between husband + wife not a matter for criminal court investigation’ (Russell LJ)
Gillick - C wanted to be unlawful for doctor to guve girls u16 contraceptive advice - court said doctor could give advice (against moral views of mother)
Pretty - Wanted immunity to end life due to motor neurone disease (consent) - ‘task of committee is not to weigh/reflect those beliefs but to a ascertain + apply law of the land (Lord Bingham)
Larsonneur - Illegal alien case - D guilty even though no voluntary AR (absolute reliability) - lack of connection to blameworthiness + she wasn’t being ‘immoral’ but still guilty of a crime
Law and Morality
Law changes quickly usually…
Law and Morality
Law often changes quickly but this refelcts a slow change in society’s morals, showing they are often linked e.g. prohibition of slavery, legalising abortion, gay marriage, smoking ban, ban on smacking children etc.
Law and Morality
What do qualified rights show?
Law and Morality
(A8,10 and 11) clearly shoe connection between law and morals - legitimate aim of ‘protecting health and morals’ as a reason for restriciting someone’s right e.g. Handyside v UK and Garaudy v France
Law and Morality
Should there be a link between law and morality? - Legal Positivism
Law and Morality
- Maintains that laws + morals should be kept separate. Key theorists linked with positivism are:
- Aristole - ‘the law should be reason free from passion’
- Bentham - natural law is ‘nonsense upon stilts’
- John Stuart Mills’s ‘harm principle’ - ‘the only purpose for [legal] power is to prevent harm to others.’ Laws shouldn’t interfere with individual liberty for moral/other reasons
- Austin’s command theory - laws are simply the command of a sovereign, enforced by sanctions that society habitually obey (rather than morally agree with)
- H.L.A. Hart - ‘laws should only intervene where immorality causes harm to society/individuals’
Law and Morality
Should there be a link between law and morality? - Natural Law
Law and Morality
- Theory maintains that the law should be used to enforce moral values. Key theorists include:
- Aquinas - natural law is a ‘dictate of right reason’ + links with ‘divine law’ implanted in us by God. This is what our laws are based on - higher moral power
- Lord Devlin - ‘the suppression of vice is as much the law’s business as the suppression of subversive activities’. It is an error to separate crime from sin’ because the fabric of society is dependant on a shared, common morality + we could lose cohesion
- Lon Fuller - some laws are so immoral that they themselves are actually invalid (e.g. laws made by Nazi regime in Germany). Fuller’s 8 principles set out the ‘inner morality of law’ - about a higher moral authority (rather than religious connotations)
- Simonds - purpose of law is to ‘conserve not only the safety and order but also moral welfare of the state’
Law and Morality
What are Laws?
Rule of Law
- Created by lawmakers acting on behalf of the state - imposed on all citizens
- Regulate conduct of citizens towards eachother + impose sanctions for non-compliance - ensuring social control and order
- Usually made by parliament (sovereign lawmakers) or judges (common law)
- Written down + published - apply to everyone
Rule of Law
What are Rules?
Rule of Law
- ‘A general norm, mandating/guiding conduct’ - Twining and Miers
- Often apply to sports, schools, games etc
- Differ between institutions
- Can be ‘unwritten’ e.g. religious customs/community expectations
Rule of Law
AV Dicey’s Rule of Law:
Rule of Law
- Absence of arbitrary state power - law sets limits on government powers
- Everyone is equal before the law (no one is above the law)
- Law must be supreme
