Law and Morality

Brief overview of Law + Morality

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  • Created by: Meg
  • Created on: 22-05-12 11:13

Difference in Law and Morality

Both normative: State what ought to be done.
Many types of behaviour offend both e.g: Murder, Rape
Laws and morals often cross with some having large moral implications:

Donoghue v Stevenson-Tort law: focusing on neighbour principle.
Contract law: Focuses on promises being kept.

Immoral things do not have to be illegal e.g: Not telling the truth
Changes in morals often occur more quickly than changes in the law which lag in comparison: R v R

Re: A (Conjoined Twins) highlights the difference in law and morality where views have to be taken from a legal principle.

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Natural Law

Theorists state: There is a higher law: Law should be based on moral code, those which are not based on this cannot be called law at all.

Professor Fuller-
Morality of Law
stated 8 key requirements:
1. Generality- Rules. Not ad hoc decisions (for this)
2. Promulgation- should be known to all
3. Non Retroactivity- not work backwards on time
4. Clarity- should be clear
5. Consistency- unconflicting
6. Realism- not impossible to comply with
7. Constancy- shouldn't change frequently
8. Congruence- administration of rules should coincide with the information known about them

In the absence of any of these, it is not a true legal system

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Utilitarianism

The doctrine that actions are right if they are useful or for the benefit of a majority.

Individuals should be free to choose their own conduct (as long as there is no harm to others) and not have morality forced upon them by society.
- John Staurt Mill

Critique: Although one persons actions don't cause direct harm to another person it doesn't mean that there is no harm done at all. Can be done psychologically in the form of offence, for example. And in relation to abortion there is harm done to an unborn baby, so the legal and moral issues cross.

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Hart V Devlin

The Wolfenden Report 1957
Recommended legalisation of prostitution and homosexuality.

Devlin                                                                                                             Hart
Opposed.                                                                                                 Approved.
Common morlaity needed as glue                         Use of law to enforce morals was
in society. Law upholds this and                               unnecessary, undesirable and
immorral behaviour is judgeded by                                        morally unaccpetable.
the standard of a right - minded
person.

Critique: What is the standard of a right minded person?
Everyone has free will and choice
Outcomes sharing Devlin's view have been seen in the following cases:
Shaw v DPP
Knuller Ltd v DPP
R v Gibson
R v Brown

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