Law & Morality Essay Structure

How to structure the Law & Morality essay in AQA A-Level Law Unit 4 exam

  • Created by: Laura
  • Created on: 15-06-14 15:24

Define Morality

  • Unwritten code of conduct
  • Ethical behaviour
  • Understanding principles of right and wrong
  • Learnt or guided by their religious or cultural beliefs, parents, peers, or society as a whole
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Define Law

  • System of rules recognised by a country or comminuity as governing the actions of its members
  • Binding
  • Enforced by authority
  • Creates fairness and equality
  • Social control
  • Avoids the breakdown of society
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Legal Rules and Moral Principles Coincide

  • Morally right but legally wrong, or vice versa
  • E.g. Driving through a red light to let an ambulance pass
  • E.g. adultry
  • Legal rules = set commencement date, written down with clear punishment system
  • Moral rules = established over time, learnt through taught behaviours
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Theoretical Standpoint 1: Legal Positivists

  • See laws, as long as made correctly, are valid regardless of content.
  • John Austin = A law is a law, whether we dislike it or not
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Theoretical Standpoint 2: Natural Law Theorists

  • Law should strongly reflect morality
  • There is a "higher law" that sets out the basic moral code
  • Different theorists have different ideas on what the "higher law" is
  • Aquinas sees it as God
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Theoretical Standpoint 3: Mill's Harm Principle

  • Expanded from Bentham's theory of Utilitarianism ("Every law is an infraction of liberty")
  • Individuals should be free to choose how they behave provided that no harm is caused to other members of society
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The Wolfenden Report

  • Considers the decriminalisation of homosexuality and prostitution
  • Claimed the function of law is to preserve order
  • It is not however the function of law to intervene in the private lives of citizens
  • The Hart and Devlin debate followed the report
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Lord 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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Professor Hart

  • Devloped Mill's "harm principle" so as to include physical harm to oneself (as well as others) as grounds for legal intervention
  • 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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How Debate Is Relevant Today: Airedale NHS V Bland

  • Hillsborough Disaster victim left in permanent vegetative state
  • It is legally wrong to kill someone whether it be mercy killing or otherwise
  • However, morally wrong to continue to keep someone alive when they have no quality of life
  • HoL had to decide if it was legal to withdraw artificial feeding
  • Decided sanctity of life was important, but so was the quality
  • The patient would grant permission if they could
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How Debate Is Relevant Today: Smoking In A Car

  • Recently parliament have been discussing the issue of smoking in a car with children present
  • Morally: wrong to expose children to harmful smoke
  • Legally: if it is made illegal, would it then be illegal to smoke in a house with children (and so on)?
  • Would be difficult to make one illegal without the other
  • Follows Mill's "harm principle"
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