Law and Morals

• Definition of a law:

  John Austin- command of parliament which the state can enforce by means of formal punishment. must be followed and applies to everyone. e.g. maximum 6 years for theft.
• Definition of a moral:

  beliefs and values shared by society or a section of society. they define what is acceptable behaviour and distinguish between right and wrong. there are no formal sanctions. e.g.
• Durkheim said:

  we live in a pluralistic society with many different beliefs. this is a problem because it's difficult to reflect everyone's morals within the legal system.
• controversial laws often involve issues that have links with morals

  they are often introduced by a private members bill with MP's given a final vote. this means that MP's can vote according to their conscience rather than follow the party whip.
• morals change over time

  but the law often lags behind to ensure stability and continuity. e.g. rape within marriage became a criminal offence in the case of R v R (1991)
• salmond's intersecting circles can be used to illustrate the overlap between law and morals.
• where law and morals overlap the laws are more likely to be followed. this is because they reflect the accepted views of the majority of society. e.g. murder & theft
• where the law and morals don't overlap, the laws are less likely to be followed unless there's a high chance of being caught.
• the judges views:

  sometimes avoid moral issues as in Gillick(1986) where they stated that it should be treated as a medical matter.
• or judges will make a moral decision as in the case of Brown where thry say it had to protect society from a 'cult of violence'
• the 2 main theories for law and morals:

  natural law theory

  legal positivism
• natural law theory:

  the law should strongly reflect morality. Aquinas saw this higher moral authority as coming from God. Laws that do not reflect this cannot be seen as valid under this theory according to him.
• legal positivism:

  Bentham argued that morality plays no part in the law and he described the natural law theory as 'Nonsense on stilts'. Utilitarianism theory is that law should be separate from morality.
• The UK is a modern society with many different religions and moral views. it would be difficult for the law to reflect all moral views as identified by Durkheim, who said that the law should look to the C C of society for the dominant view in society and make the laws accordingly.
• problems with the natural law approach:

  we are less influenced by religious views as we become a more secular society. last census showed more people than ever stated that they did not have any religious beliefs. but there are modern cases that illustrate this approach being taken in the courts. e.g. Gibson, and artist, created an exhibit of a model's head wearing earring made out of freeze-dried human foetus. he was convicted of outraging public decency.
• legal positivism also has it's problems as the majority will be happy, but not the minority. e.g. in the case of Gillick, the courts appreciated that there were moral issues in the case but avoided them by looking at it like a medical issue. they stated that any child under the age of 16 could consent to medical treatment provided the doctor believed they understood what they were consenting to, so why not to contraception advice?
• in 1957 the Wolfenden Committee recommended that?

  Homosexuality between consenting adults in private should no longer be an offence.
• Devlin was against the report because?

  he believed that the law should reflect morality as we need some form of common morality with basic agreement on goof and evil to keep society together. he developed the 'right minded man' test by which common morality would be decided.
• Hart was in favour of the report because:

  he believed that the law should have a more I role in the enforcement of morality and laws shouldn't interfere with personal morals. he questioned the concept of a right-minded person, as we live in a society where there are many different views.
• as a result of the Wolfenden Report the Sexual Offences Act 1967 was passed which decriminalised homosexuality between two consenting males aged over 21 years.
• later in 2001 the age of consent was reduced to 18.
• Brown (Devlin's view):

  defence of consent was denied with the court taking a moral viewpoint that "society is entitled and bound to protect itself against a cult of violence"

  this is now a part of the domestic abuse act 2021 - rough sex is no longer a defence
• Wilson (Hart's view)

  quashed conviction. Law should not interfere with private activities between a consensual couple.
• which 2 acts shows hart's view?

  Civil partnership act 2004

  Marriage (Same Sex Couples) Act 2014