Law and morals

A2 Law unit 4C revision - plan and cases

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Definition of law and morals

  • relationship between law and morality is important but complex and still highly contentous
  • Law - set of formally made rules which bind community and regulate behaviour within that community John Salmond: "the body of principles recognised and applied by the state in the administration of justice"
  • Morals - essentially society's alues on what is right or wrong
  • Inevitably overlap but phrases not INTERCHANGABLE e.g. murder both morally and legally wrong but adultry morally wrong in most communities but not against the law. But, offence to display car tax on drivers right (nobody would argue morally wrong)
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Differences between law and morality

  • Both NORMATIVE: what must/ought to be done boundaries between the acceptable and unacceptable
  • Disagreements as to the state or content of law can be resolved by reference to statute or case law whereas no accepted way to resolve disagreements as to the current moral view on a particular subject
  • unlike legal rules compliance with moral rules is VOLUNTARY - enforced by social and domestic pressure. Legal rules enforced by various authorities (Police, Judicary, CPS)
  • legal rules can involve strict liablility where as moral "offences" can only be commited with voluntary knowledge act is morally wrong
  • Legal rules changed by ENACTMENT (date and time easily identified) - changes in morality gradual deelop over 1000's of years (religous and social history)
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Relationship between law and morality - close rela

  • many laws based on religous beliefs which inevitably influence moral rules (some laws taken from religous sciptures: "thou shalt not kill" (10 commandments)
  • Other moral views found way into law: incest (Criminalisation - Punishment of incest ACt 1908), Bigamy: (contrast with christain moral values - "inloves outrage of public decency and morals" Cockburn CJ in Rv Allen 1972), Obscenity: (Obsecene Publication Act 1959)
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How law change to reflect moral values

  • common law has changed to reflect changing moral values
  • Decline of religion based morlaity: Shops act (1950) v Sunday Trading Act 1994 allow shops to open for 6 hours on sunday (less than usual). 1967 abortion act (acceptable form of birth control)
  • Homosexuals: Civil Partnership Act 2004, Sexual Offences (Ammendment) Act 2003 - age of consent for homosexuals in Britain to be reduced from 18 to 16, Human Fertilisation and Embryology Act (2006) - same sex couples as legal parents of children concieved through use of donated sperm, eggs or embryos e.g. ciil partner of woman who carries child by IF to be recognised as childs legal parent
  • Recent- ban on smoking (2007) - shift in moral values supported by health implications
  • important case: R v.R (1991) - ancient rule on marrital **** not any longer morally acceptable > law react far too slow to a cahnge in moral values
  • changes reflect radical shift in moral attitudes over the past 20/30 years
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Judges trying to enforce morality

  • Shaw v DPP (1961) - HOL create new offence (conspircay to corrupt public morals) in order according to Viscount Simmonds to - "presevere moral alues of the state"
  • This was HIGHPOINT of judical attempts to promote moral values, but in recent years judges have shown their willingness to use law to send out message to society on moral values
  • Brown and others (1994) HOL (3/2 margin) - refuse to allow consent to non-pernament injuries inflicted from Sado-masochistic practices between homosexual males (presere moral values main reason for decision) - Lord Mustill dissent (question was purely legal one and that cocerns of protecting consenting adults from harming themseles was not of utmost importance)
  • compare to R v. Wilson (1997) - "bottom branding" consent approved. hard to identify difference accept sexual preference of consenting parties > homophobic > not show clear message as to legal attitudes towards morality.
  • Court quite prepared to uphold moral values where they feel appropiate
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Weak relationship - law not based on morality

  • strict liablity offences - speeding - can be commited when D not morally to blame e.g. husband breaks sppeding limit to take preganet wife to hospital
  • regulatory offences: no moral but necessairy for PRACTICAL reasons : what side of road to drive on and need 2 signatures on will
  • Nettleship v Weston (1971) - learner drier not morally to blmae in crashing due to inexperience - still found liable of negligence
  • R v Kingston (1994) - homosexual ********** drugged and lured into indecent acts - not morally to blame in getting into situation > still criminally liable for the acts.
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Importance of courts and law in upholding and prom

  • major role, courts are arena where society's most fundamental moral values are tested
  • ethical cases: Re A (2000), Debbie Purdy (2009) - courts adjudicate on very complex moral issues. siemese twins - equally right/wrong from moral view point the only way to reach a devision is to revert back to the law
  • Debbie Purdy win right to have law on assisted suicide clarified
  • cases on sensitive issues e.g. clong and euthanasia show law will always be at the centre of determing moral deabtes > upholding moral values
  • IVF natalie Evans ex partner did give consent but then withdraw ECHR even in such exceptional circumstances the right to family life could not overide her ex-partners lack of consent
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Hart and Devlin Debate

  • debate followed the Wolfenden report 1957 > which recommended the legalisation of homosexuality and prostitution: "Should not interene in the lives of citezens or seek to enforce particular pattern of behaviour further than necessary"
  • Supported by Hart who was influeced by the utilitarian theory developed by John Stuart Mills. "Law, liberty and morals" 1962: little or no shared morality in modern pluralist society beyond his "minumn content" for the protection of persons and property, and there is no freedom if we can only do those acts which others approve of. no evidence that departure from accepted stanadrds of sexual morlaity by consenting adults in private does anything to threaten society. Favour Paternalistic approach (law only inteferes to protect from harming themselves or another) Pornography would be acceptable as hurt no one but obviously morally wrong.
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Hart/Devlin debate cont.

  • Opposed by Lord Devlin (keen for law to be proactive in seeking to establish and enforce societys moral principles), similar to theory of Natural Law developed by Thomas Arquianis, The Enforcement of Morals (1959).
  • morality not simply matter for individual judgement but that any society must have recognised common morality. society has a right to protect its own existance he said, and just as treason is punishable because it threatens surival of the state so society is entitled to punish any act which offends its shared morality which binds society together. > should only use sparingly.can even punish individual acts. Adultry would be viewed as illegal using this approach as it is morally wrong
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importance in 21st century

  • rapid rate at which moral attitudes have shifted since early 1960s
  • reduced role of religion in guiding moral values
  • moral values continuing to change: 80% now support some form of voluntary euthanasia
  • even more important in secular society that children are educated according to a agreeded set of values to ensure respectful/harmanious cultaure for future generations
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Conclusion of strong link between law and morality

  • parliament and courts law has changed to reflect moral values (example) and occasionally judges have used law to influence moral standards
  • religion has become less influential in British Law
  • courts inevitably in postition where they will have to make a judgment on highly complex moral issues > have intervene and therfore set moral boundaries
  • Re A - (murder/save 1 life) medical opinion overule moral and religous beliefs show how sometimes necessairy for law to be inoled in moral issues and make exception from well established principle
  • can never be too far removed as society will always seek conformation of its deepest and most commonly held legal beliefs
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Conclusion - still important in the 21st century?

  • moral values changed more in the last 50 years than 200 years increased sense of freedom amongst indiiduals. debate is ofen extent to which these freedoms should be compromomised by a legal system intent on protecting interests of the state.
  • Debate partuculary alid in light of HRA 98 set certain freedoms to be in conflict with certain rights e.g. "freedom of expression" at odds right to "private and family life" ? when is it morally right to inade someones priacy?
  • for laws to be widely accepted by citezens they must broardly correspond to most people moral values sepite discussion previously as to extent
  • legal system widely accepted venue for resoling ineitable conflicts between law and morality Re A and Debbie Purdy
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Comments

Sharon

the Human Fertilisation and Embryology Act is 2008, Sexual Offences (Ammendment) Act is 2000

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