Law + Morality

1) Law definition

Law is a set of rules and regulations that govern society by threat of punishment

Sir Hammond - a body of principles recognised and applied by state

Compliancce with law is compulsory

Laws can be introduced and changed at any time

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2) Morality definition

Harris = set of beliefs, values, principles, standards of behaviour

Not enforced by the state, enfrorced through social condemnation

Morals change gradually. For example, views on homosexuality

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3) Relationship between law and morality

Legal and moral rules are normative

Specify boundaries of acceptable/unacceptable conduct

Many rules and regylations are laws and morals

Salmond's interlocking circles:

Legal = driving offences, strict liability

Moral = adultery, swearing

Both = murder, ****, theft

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4) Law and morality coinciding

Trace it back to ten commandments

Marital **** - law was slow to catch up with morals. R v R

Abortion - law influenced morals

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5) Law and morality deviating

Statutory interpretation - Fisher v Bell, immoral actions not guilty

Pluralistic society - Morals vary between individuals, law is unilateral. Eg abortion

Euthanasia - legally wrong, many find this immoral. Eg Bland

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6) Unclear between law and morality

Gibson and Sulveur - foetus earrings

1) They had no place in moral society

2) Artist claimed it was a statement about the casual nature of abortion and it would be immoral not to show it

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7) Law should uphold morality

Natural Law believe the law should reflect morality

The validity of man-made law depends upon their compatibility with a higher, moral authority

 

Thomas Aquines: four types of law:

Eternal Law: The highest law that governs everything within the universe

Divine Law: Concerned with the standards man must conform to in order to achieve salvation, these are revealed by inspiration or revelation

Natural Law: Derived from eternal law and deals with the general rules of conduct that govern the behaviour of ‘beings possessing reason and free will’ implanted in us by God so we have a natural inclination to ‘do good and avoid evil’

Human Law: Derived from natural law, it is the result of a process of applying principles contained within natural law to particular geographical, historical and social circumstances

 If Divien Law came into conflict with man made laws then Divine Law should take precedence. 

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8) Law shouldn't uphold morality

Legal Positivism:

Believe a law is a legal which, if made in the manner recognised by the legislative power in the state, is valid irrespective of its content.

Law and morals and distinct and separate

 

John Austin:

“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”

Command Theory: A law is a command from a sovereign whom the population at large is in the habit of obeying, and it is reinforced by the authority of sanctions. The law, therefore the expressed wish of the sovereign and as such are distinguishable from other commands

A critics of Austin’s views is that is difficult to identify a sovereign, and many areas of the law don’t fit into such a definition

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9) Hart

  • believed law should not enforce morality
  • individuals should not be made to conform to the will of the majority
  • undesirable, unnecessary and morally unacceptable for law to impose morality
  • infingment on the rights of individuals.

The law may only intervene when it is harmful, not because the conduct is wrong

Hart focuses on the individual

Criticism: The issue of "harm" is not clearly defined

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10) Devlin

Believed morality is essential to society's existance

The "cement of society"

"Society should tolerate what a reasonable man would tolerate, and where conduct is so immoral that the reasonal man would feel disgust, society would ban that activity"

Devlin focuses on society

Criticism: Assumes every act of immorality threatens society when there is no evidence to support this

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11) Conclusion

So, in conclusion, the law does try to enforce morality in many cases but as morals are constantly changing with each generation, the law sometimes fails to keep up. There cannot be a complete separation between law and morals as many are intertwined. 

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