Law and Morals

• Laws 


  John Austin. Command of Parliament that the state can enforce by means of a formal punishment.  Applies to all.
• Morals 


  set of beliefs/values shared by society or section of society. No formal sanctions
• Pluralistic Society 


  Durkheim. Difficult for law to reflect all moral views.

  Private Members Bill’s used to pass controversial laws (ABORTION ACT 1967)
• Similarities and differences between law and morals 


  both tell us what is right and wrong but laws apply to everyone whereas morals are individual. 
• Courts vary in their approach to moral issues:

  -          BROWN. Their role to protect society from a ‘cult of violence’

  -          WILSON. Not their role to dictate how consenting adults behave in private
• Salmond’s intersecting circles


  illustrates that where law and morals overlap they are more likely to be followed. E.g. murder and theft.
• Key cases to use to illustrate:

  -          GILLICK – avoided the moral issues and decided as a medical matter.

  -          RE (A)

  • used the rarely used defence of necessity to authorise separation of conjoined twins to save 1 life. They stated that “this is a court of law, not a court of morals”.
• NATURAL LAW THEORY:


  law should be used to enforce moral values. Aquinas from God – e.g. thou shalt not kill.
• LEGAL POSITIVISM: 


   Bentham - law and morals should be kept separate. Utilitarianism.
• WOLFENDEN REPORT 1957


  recommended the decriminalisation of homosexuality. This was implemented in the SEXUAL OFFENCES ACT 1967
• Hart v Devlin debate:


  Devlin - society will disintegrate if morals are not upheld. Common morality should be reflected in the law.  To be decided by the ‘right minded person’ test.

  e.g. GIBSON – convicted of outraging public decency and BROWN – “pleasure derived from the infliction of pain is an evil thing”

   Hart - law should only intervene with morality where it causes harms to the society.

  E.g. CIVIL PARTNERSHIP ACT 2004 and SAME SEX MARRIAGE ACT 2014