Morality

Morals are...

a set of beliefs and values. Philip Harris defines morals as principles affecting standard of behaviour. Morals change all the time and arent shared by all members of society. Many morals are based on the dominant religion in society e.g. thou shall not k

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Laws are

a set of rules recognised and applied by the state unto society

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Key differences between law and morals

- Laws must be followed, otherwise consequences
- Morals are subscribed to, no real sanction if morals are violated, but there is with law

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How dominant morals were on law development

Since laws have been created, moral views have influenced their content to various degrees e.g. Christian values with the 10 commandments and laws on murder and theft

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There is debate as to the role that morals should play on law. There are two main theories relating to the nature of law

Legal Positivism & Natural Law

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Legal Positivism

Idea that laws are valid where they are made by a recognised legislative power in the state and do not have to satisfy any higher authority. Supported by Bentham, Mill, and Aristotle (law free from passion)

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Natural Law

Advocates such as Fuller, Aquinas, and Simonds suggest law should be based on morality, upholding the moral views of society. Lawmakers must protect societies moral code

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Woolfenden Report 1950's which led to legalisation of Homosexuality in SOA 1967

Catalyst for this debate. Lord Devlin believes law should set the basic standard of morality, and that society should aim for higher standards. Devlin was critical of the report - should be shared morality in society, society may disintegrate if morals no

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Hart Disagreed with Devlin

He was influenced by utilitarian Stuart Mill. Both Hart and Mill thought laws should only be used to prevent harm to others. Laws that enforce morals on others should be scrapped - as it infringes a person's autonomy

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Natural Law Theorists believed

such as Aquinas believed that laws and morals came from God. Since the decline of religion in many societies, Positivists such as bentham criticised natural law theories for confusing moral issues and legal issues

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Hart in Hart v Fuller

Disagreement between Natural Lawyers and Positivists seen here. Laws made by German Gov were still valid according to Hart, even though immoral they were legally enforceable

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Fuller

These laws went against natural law and because they were immoral, they were never acc valid. German courts agreed with fuller when they prosecuted informants as war criminals even tho what they did was legal during the war

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Concept of Morality will affect the law being created

As the moral views of the lawmaker are often visible in the law being created. This can be seen in both common law verdicts R v Brown (n) compared to R v Wilson (lp), as well as the moral views of today's government

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Common Morality

Sometimes difficult for state to pass laws that reflect the morals/beliefs of everyone in society. Durkheim - in small societies it was possible for common morality and common laws that reflect society

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However, Pluralism

We now live in a multicultural society where people have a wide range of morals depending on income, religion, social status etc. This is because we live in a pluralist society

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Pluralist societies

Contain a wide range of moral standards and beliefs, making it difficult for the law to please everyone

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Parliament may make use of Private Members Bills to pass controversial laws

Political parties don't have to reveal their views on controversial issues. Instead Backbench MP's will pass this law e.g. Abortion Act 1967 legalised abortion. Very controversial law at the time

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More recently, Assisted Dying Bill

defeated in parliament as MP's couldn't agree. Many people in society would be in favour of this change in law but there is still opposition. So a natural law opinion still holds presence here

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Cases where one party holds religious viewpoint that courts dont agree with

Re A - Parents opposed seperation of conjoined baby twins however court authorised seperation
Re S - Pregnant woman refused to have C-Section, however court ordered for procedure to go ahead against her will. Decisions = controversial as judge is making m

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Judges criticsied for being old and out of touch due to being from a narrow social background

Judge's morals may be different from those of the public. this critique made in R v Brown when HoL refused to allow a group of gay men to raise the defence of consent when they partook in S&M

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HoL decision however

was not based on sexual orientation. Instead court did not want to be seen to endorse cruelty and degradation as "you cannot consent to ABH and GBH so based on this, the ruling was correct"

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Coincidence of legal and moral rules

Though distinctive, share certain characteristics:
-Set standards (essential for governing behaviour)
-Dictate ways people are expected to behave
-Use similar language (distinguish right and wrong, speak of duties and obligations)
- Legal rules streng

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Legal rules that possess no obvious moral content

Parking on double yellow line at 4am does not infringe any moral code, but is a crime

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Moral rules that possess no legal content

Adultery = immoral, but not illegal in UK, even though it is elsewhere

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Influence of law and morality on each other - Changing moral values can lead to developments in the law

Can be seen in historical development of the law relating to **** within marriage. Ruled in 1736 that a man cannot **** his wife. In 1991 - Owen J stated "hard to believe it was common law for a man to beat his wife into submission to intercourse". Law ev

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Morality

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