Law and Morality essay plan

Law

Rules and regulations that govern society and guide conduct

Sir John Hammon - body of principles recognised by the state

Compliance is compulsory and breaches of it leads to sanctions

Laws can be implemented immediately

Statutes are given a commencement date

Precedent is created in court rulings and are binding to lower courts

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Morality

Can be individual to a person

Morality is enforced through social condemation but it's individuals choice to follow or not

Britain is a diverse society with different morals but same legal rules

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Differences between law and morality

- Laws are enforced formally, created externally and concern external human conduct

Morality has no sources, no officlas, no agencies cabale of creating rules and concerns internals

- Law is imposed on all members of society alike

Morality can alter to each individual

- Dispute over laws can be resolved through looking at statues and precedents which can't be disputed

Morality is open to dispute as views develop

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Relationship between law and morality

Both are normative - teach acceptable and unacceptable conduct

Salmond's interlocking circles:

Legal - driving offences, strict liability

Moral - adultery, swearing

Both - murder, theft, ****

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UK Multicultural society

UK is a diverse multicultural society with different religions and political views. Diversity impacts relationship of law and morality

- Eg abortion - some see it as immoral, some see it as moral for medical needs.

It can be be near impossible for law to uphold moral values because no value consensus

- Eg Gillick v Norfolk: If courts rule under 16 contraception needs parental consent, teenage preganncy may rise. If not, may be see as encouraging underage sexual intercourse.

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R v Brown - Sadomasachism

Raised argument of whether law should uphold morals and make sadomasachism illegal

Legal themes = validity of the consent and lack of lawfulness

Moral themes = infringing rights of individual for society

Raised the Hart/Devlin debate

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Hart

- Law should not enforce morality

- Individuals shouldn't conform to majority

- It's undesirable, unneccessary and unacceptable

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Devlin

- Society shares a common morality and law should intervene to punish any act that goes against this

- Failure to intervene could lead to disintigration of society

- In R v Brown, Lords sided with Devlin

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France

- Controversial laws have been passed

- 2011, Burka ban infringed on individuals rights

- 2011 survey, 80% of people were for a ban on politics and religion in schools

= Society's moral views were upheld at expense of individuals

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Homosexuality

- Law has altered with changing morals

- Sexual Offences Act 1967 - legal over 21. 

1994 - lowered to 18

2000 - lowered to 16

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Natural law

- Law should reflect morality

- Validity of law depends upon compatibility with morals

- Aristotle - divine law is moral standars by whcih society must conform to

- Acquinas - conflict between divine and manmade, divine law should take precedent

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Legal positivist

- Law and morals are distinct and seperate

- Natural law is nonsense upon stilts

- Law is valid irrespectice of it's content

- Austin - a law which exists is a law, even though we dislike

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Should law allow behaviour if there's no shared mo

- Euthanasia = fine line between assisted suicide and murder. Eg Pretty

- Designer babies = should people be allowed to choose genetic makeup or only medicial?  Eg Quintaville

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Conclusion

It is difficult to work out whether law should uphold morality but probably should due to constant changing morals

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