Law and Morality

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  • Created by: Teganwi
  • Created on: 16-05-21 16:54

Law and Morality

What is law

A rule is something that determines the wai in which we behave, whether this is voluntarily such as moral rules, or beacuse it is enforeable such as laws. 

Soem rules are not based on either laws or morality such as the rules of football. However, if these rules are broken it can include laws or morality, for example cheating can be considered immoral.

There are two main theories relating to the nature of law

  • Legal positivism
  • Natural law

Legal positivism

A theory of law that is based on the idea that laws are valid where they are made by the recognised legislative power in the state and do not have to satisfy any higher authority.

Classic legal positivsts:

Jeremy Bentham- utilitarian law reformer. Believed that there is a distiction between law and its merit or demerts. 'A law whihc exists is a law, though we happen to dislike it'. Morals are therefore irrelevant to law.

John Austin- developed the command theory of law with three main principles:

  • Laws are commands issued by the uncommanded commander-the sovereign.
  • Such commands are enforced by sanctions.
  • A sovereign is one who is obeyed by the majority.

A sovereign is whom society obeys habitually. This can be a single person or collective. For example, Parliament is the sovereign who makes laws and sanctions can be seen in criminal law.

Other legal positivists:

Hart- two catergoriees of rules, primary and secondary, that combine to form the basis of a workable legal system 

1. Primary rules either impose legal obligations or grant powers. 

2. Secondary rules are concerned with the operation of primary rules. Identified three secondary rules

  • The rule of recognition- identify primary rules
  • Rules of change- how legal rules are formed, amended or repealed
  • Rules of adjudication- enable courts to settle disputes and intterpret the law

Raz- the identity and existence of a legal system may be tested by reference to three elements

  • efficacy
  • institutional character
  • sources

Law is autonomous - we can identify its content wihtout recourse to morality.

Natural Law

A theory that laws should be based on morals and ethics, and this is what makes them valid. Where laws do not satisfy these morals, the law lacks validity.

Aristotle- defines goodness and states evil originates from lacking to fulfil their human nature

Thomas Aquinas- combined Aristotle and Christian theology. He set out four kinds of law:

  • Eternal law: all things have a natural tendency to pursue their own God given goalsbecause all things are created by God.
  • Natural law: the moral code which human beings are naturally inclined towards. Man made laws must conform to this.
  • Positive divine law is the commandmands of God- Ten Commandments.
  • Positive human law must be in accordance with natural law.

Aquinas also stated that there are three natural ends or goals from which we can work out moral principles:

1. Anything that exists has a natural tendency to go on exissting. Natural law opposes death therefore human law must follow…

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