Section A - law and morality Flashcards
(29 cards)
two types of question
1) is there a relationship
2) should there be a relationship
laws
- Rule enforced by gov/court
- Sanction if broken - prison or compensation
- Apply to everyone equally
morals
- “Norms”
- Society’s rules of behaviour/beliefs/views
- Not illegal - told of , judgement/isolated
- Different for people/groups/religions
Legal rules and morality share certain characteristics
- They are both concerned with setting standards (“reasonable man test” - Blyth v BW) which govern behaviour
- They dictate ways in which people are expected to behave
- They employ similar language
- They distinguish between right and wrong
- They speak of duties and obligations (E.G negligence - obligation to act)
- Legal rules are strengthened when they are the same as moral rules and their enforcement can be more readily justified and accepted by a society -
- E.G Alan Turing
- Ethunasia illegal (85% disagreed) - law eventually changes 2025
- Sometimes legal rules possess no obvious moral content
examples of law and morals sharing certain characteristics
- Illegal and immoral - murder
- Illegal and moral - stealing as family starving , parking on double yellows?
- Legal and immoral - leaving dog poo
case study - alan turing
shows society morals change which changes the law
- “This man was a national treasure and we hounded him to his death… im looking for an apology from the british government because that’s where i think the wrong was done”
- Gay man, made him go through conversion therapy which led to an early death
- In 2013 , the gov pardoned him from criminality (being gay)
- Shows society’s morals change over time which influences the law to change
orgins of legal and moral rules
is there a relationship between law and morality
- legal - Government/parliament/cases/common law
- moral - Society , religion , parents , ourselves
commencement (how do they begin) of legal and morals
is there a relationship between law and morality
- legal - when an act is passed (instantly)
- moral - gradually over time (no foxed point)
enforcement of legal and moral rules
is there a relationship between law and morality
- legal - courts
- moral - societies judgement
ease of change of legal and moral rules
is there a relationship between law and morality
- legal - reasonably easy to change
- moral - not very easy
certainty content of legal and moral rules
is there a relationship between law and morality
- legal - very clear working
- moral - differs between people
rules of application for legal and moral rules
is there a relationship between law and morality
- legal - everyone
- morals - personal
Pluralism
Pluralism - put at end of A01 - is it that easy to link
- Tolerance of a wide variety of views
- Have a diverse population - different religions , ethnicities
- Leads to a great variety of moral views
- The country we live in plays a huge role in shaping our lives
- The state has the right to punish individuals if we go beyond what the state deems to be appropriate limits
examples illistrating relationship between law and morality
is there a relationship between law and morality
- r v brown - sado, judges morals
- gibson - foetus earnings , upholding morals
- dr evil - body modification, shows pluralism
cases illustrating lack of relationship between law and morality
is there a relationship between law and morality
- wilson - consentually abh, not illegal but against morals
- pretty - assisted sucide, morally right but legally no
- collins - self defence , is it morally okay to give brain damage
theories on the relationship between morals and law
Should the law reflect morality
- legal positivism
- natural law
legal positivism
Should the law reflect morality
- Laws are made by the state
- Societies habitually obey the state
- Laws are commands by the state
- Laws are enforced by threat of sanctions
- Follow them irrespective of what your morals are
- Laws don’t have to satisfy any higher authority
- Laws are therefore not based on morals
natural law
Should the law reflect morality
- Divine law is rules implanted in us by god
- Law has a higher authority than state
- Laws are made to achieve social order by guiding conduct
- Morals are guiding laws (parliament go off their morals for the law)
- Lon Fuller’s “inner morality of law”
- Validity of law depends on morality
Legal positivist theorist - Jeremy Bentham
Should the law reflect morality
- He believed that the philosophy of law should be concerned purely with what the law is
- “The existence of law is one thing , its merit or demerit is another. A law which exists is a law, though we happen to dislike it”
- So, even though an individual or a group of individuals may find the law offensive , this does not affect the validity
- Morality is irrelevant to law
Legal positivist theorist - john austin
Should the law reflect morality
- Developed the command theory of law
- 3 main principles
- Laws are commands issued by the uncommanded commander - the state
- Such commands are enforced by sanctions
- A sovereign is one who is obeyed by the majority
- A sovereign as one whom society obeys habitually (could be a person - dictator , or group - parliament)
Legal positivist theorist - HLA Hart
Should the law reflect morality
argues with devlin
- Believed in separation of law and morality
- He argued there are two categories of rules; primary and secondary
- Primary - either impose legal obligations or grant powers
- Secondary - concerned with the operation of primary legal rules
- 3 specific rules within secondary rules - rule of recognition , rules of change and rule of adjudication
Natural law theorists - Thomas Aquinas
Should the law reflect morality
- Combined the philosophy of Aristotle with christian theology
- Included the bible and ten commandments and catholic church traditions
- Laws are based on a higher power (god)
- Set out 4 kinds of law;
- 1. Eternal law - all things have natural tendency to follow god’s goals bc we are created by god
- 2. Natural law - the moral code in which humans naturally inclined towards good
- 3. Positive divine law comes from the commands of god
- 4. Positive human law must be in accordance with natural law
Natural law theorists - Lon Fuller
Should the law reflect morality
- Argued that law provides general rules on which people can base their behaviour and achieve social order
- If law is to achieve this purpose, it must satisfy the principles which make up an inner morality of law
- Immoral law = invalid law
- Fuller’s 8 principles of inner morality - on sheet
- More modern
fullers 8 principles
Should the law reflect morality
the rules must
1) be expressed in general terms
2) be publicly promulgated
3) be prospective in effect
4) be expressed in understandable terms
5) be consistent with one another
6) not require conduct beyond the powers of the affected parties
7) not be changed so frequently that the subject cant rely on them
8) be adminstered in a manner consistent with their wording
